The House of Commons Public Accounts Committee has issued an inquiry report which is highly critical of the Ministry of Justice’s efforts at Reducing the backlog in criminal courts (HC 643).

The committee of MPs chaired by Meg Hillier MP found that the backlog of Crown Court cases, which stood at 33,290 cases in March 2019, had already grown to 41,045 cases in March 2020 when the pandemic set it, and since then it increased by a further 46% to 59,928 cases in September 2021. The MOJ obtained funding to help reduce it, but this would only bring it down to 53,000 cases by March 2025, which the committee scorned as a “meagre ambition” in the circumstances. Moreover,

“this modest ambition would mean the backlog in cases would be still considerably higher than before the pandemic. There are also significant, systemic challenges that threaten its achievement including having enough judges, legal professionals and local staff to support criminal courts. We also have significant concerns about the ability of the rest of the criminal justice system to respond to more cases flowing through the courts, particularly in the prison service.”

Among the report’s recommendations it says that, in its Treasury Minute response, the MOJ should “set out its plan to assess the impact of its measures to support victims of rape and serious sexual offences and its progress on recruiting ISVAs” (independent sexual violence advisors) and, more generally,

“should set out how it is building resilience across the criminal justice system and, crucially, how it will ensure there are enough prison places to meet the expected demand from increased police recruitment and faster recovery in criminal courts.”

The committee also joins a chorus of other reports and commentators in urging the MOJ to make better use of data collection and analysis to improve its services in this area.

While the report highlights the need to recruit more judges, and give them more sitting days, the MOJ may also have to address a shortage of barristers, something that might soon become even more acute.

The Criminal Bar Association announced on Sunday night that its members

“have voted almost unanimously in favour of refusing to accept return work under the AGFS [Advocated Graduated Fee Scheme] from 11th April unless Government agrees to the measures necessary to safeguard the long-term sustainability of the Criminal Bar and which are therefore essential to preserving a criminal justice system that meets the legitimate demands of the public.

94.34% of the 1,908 members who cast their votes have made it absolutely clear that they are not willing to be led by a Government timetable that brings no prospect of a settlement until the end of September. They have already waited too long. Through our labour and our goodwill, we have sustained a chronically underfunded criminal justice system on behalf of the public while suffering substantial reductions in our real incomes and exhausted by the hugely increased demands placed upon us, often for little or no reward.”

Accepting returns, ie appearing at a hearing on behalf of a colleague (eg because another case has overrun), is something normally done as part of the goodwill by which barristers help keep the criminal justice system going, to the benefit of everyone. By refusing to accept returns, under the proposed action, criminal barristers will not be refusing to work. They will simply undertake their own work.

UPDATE: 15 March 2022. Government announces that

“Criminal legal aid lawyers are set for the biggest pay boost in a decade under wide-ranging reforms proposed by the government today”, as

“An extra £135 million will be spent on the [legal aid] sector every year to match the recommendation made by an independent review of the system, overseen by Sir Christopher Bellamy QC”.

However, a Statement from Jo Sidhu QC, Chair of the Criminal Bar Association made clear that the suggested increase “will not be sufficient to retain enough criminal barristers to keep the wheels of justice turning and that means victims will be failed”.

Public law

The women’s safety campaign group Reclaim These Streets has won a claim for judicial review of the decision by the Metropolitan Police Service not to permit them to hold a socially-distanced public vigil on Saturday 13 March 2021 in memory of Sarah Everard, who had been raped and murdered by a serving police officer who had recently been arrested and charged. In Leigh & Ors v The Commissioner of Police of the Metropolis [2022] EWHC 527 (Admin) the Queen’s Bench Divisional Court (Warby LJ, Holgate J) held that decisions taken by MPS, relying on covid lockdown regulations then in force but failing to consider other relevant factors, infringed the claimants’ rights to freedom of expression and freedom of assembly under Articles 10 and 11 of the European Convention on Human Rights. As the court explained in its press summary,

“None of the MPS decisions was in accordance with the law; the evidence showed that the MPS failed to perform its legal duty to consider whether the claimants might have a reasonable excuse for holding the gathering, or to conduct the fact-specific proportionality assessment required in order to perform that duty.”

In a press release celebrating their victory, Reclaim These Streets also drew attention to the wider issue of curbs on protests:

“We hope that as Parliament considers giving the police greater powers to curb protests, in the Police, Courts, Sentencing and Crime Bill, that this ruling reminds everyone the importance of upholding our human rights. We believe it sets an important precedent for future protests and the way they are policed.”

The MPS seem to recognise the significance of the decision as well, which is why in their press statement they say they are considering an appeal:

“The Met unreservedly endorses the principle that fundamental freedoms, such as those exercised by the claimants in this case, may only be restricted where it is necessary and proportionate for a lawful purpose. Consideration of an appeal is in no way indicative that the Met do not consider such protections to be of the utmost importance. It is, however, incumbent on the Met to ensure that this judgment does not unduly inhibit its ability, and that of police forces across the country, to effectively balance competing rights in a way that is operationally deliverable.”

Anna Birley, one of the founders of Reclaim These Streets, wrote in The Guardian: The police banned our vigil for Sarah Everard and that was illegal — how can women trust them?

The Mayor of London, Sadiq Khan has launched an awareness campaign to encourage men to consider and reflect on the need to prevent male violence against women and girls. The idea is to curb what often starts with thoughts and words that later escalate into deeds. The campaign includes notices in public toilets and this conscience-pricking video:

The government announced that a “new” criminal offence of cyberflashing — sending unsolicited sexual images to people via social media, dating apps or electronic transfer services — will be included in the Online Safety Bill. It follows similar recent action to criminalise upskirting and breastfeeding voyeurism, with the Government saying it is “determined to protect people, particularly women and girls, from these emerging crimes”.

It follows a Law Commission review ‘Modernising Communications Offences’ which recommended that a new offence should be created.

International human rights

The liberal activist Raif Badawi, who was sentenced 10 years’ imprisonment and 1000 lashes for setting up a liberal website and allegedly insulting Islam and religious authorities, has finally been released. )We first wrote about his case in Weekly Notes, 11 July 2014.)

He was arrested in 2012 after publishing a blog, the Saudi Free Liberals Forum, in which he was occasionally critical of the theocratic way his country was governed. In January 2015 he was given the first instalment of 50 lashes. The following week, the same dose was postponed because his wounds from the first instalment had not yet healed. Although he appears to have served the full ten years of his sentence (including time served on remand), the lashes do not appear to have been further proceeded with. (See The Times, Raif Badawi: Saudi blogger freed after a decade behind bars.) However, his lawyer Waleed Abu al-Khair was subsequently also arrested, and sentenced to 15 years in prison, followed by a 15-year travel ban for various offences including “inciting public opinion against the government” and “insulting the country’s leaders and judiciary”.

Saudi Arabia has more recently incurred international condemnation over the extra-judicial killing of another prominent critic, the journalist Jamal Khashoggi in October 2018. (See BBC, Jamal Khashoggi: All you need to know about Saudi journalist’s death and The Killing in the Consulate: Investigating the Life and Death of Jamal Khashoggi, by Jonathan Rugman (Simon & Schuster).

But as we turn away from Russian supplies of oil and gas, we now find we need to swallow our principles and go to the desert kingdom with a petition for more oil. (See Reuters, UK’s Johnson urges Saudi Arabia to raise oil output, minister says) Perhaps because of this, or because the world was distracted by events in Ukraine, last week Saudi Arabia chose to announce its execution of 81 prisoners in a single day. This was, according to Al Jazeera, “the largest known mass execution carried out in the kingdom’s modern history”. The Saudi interior ministry said:

“These individuals, totalling 81, were convicted of various crimes including murdering innocent men, women and children. Crimes committed by these individuals also include pledging allegiance to foreign terrorist organisations, such as ISIS, al-Qaeda and the Houthis.”

The merciless implementation of the death penalty, even for offenders who were minors at the time, and for offences of relatively lesser seriousness, has drawn fresh attention to Saudi Arabia’s involvement in the takeover of Newcastle United football club, which last week lost its match against Chelsea FC, aka Chelski, owned by the prominent Russian oligarch Roman Abramovich, whose assets (including the club, which he was hoping to sell) have been frozen as part of the latest round of economic sanctions.

Recent case summaries from ICLR

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

CONTEMPT OF COURT — Committal proceedings — Breach of injunction: Business Mortgage Finance 4 plc v Hussain, 02 Mar 2022 [2022] EWHC 449 (Ch); [2022] WLR(D) 109, Ch D

CRIME — Sentence — Offences committed many years previously: R v Limon (Andrew), 20 Jan 2022 [2022] EWCA Crim 39; [2022] WLR(D) 110, CA

EDUCATION — Local Authority — Duty to make special educational provision: R (L) v Devon County Council, 08 Mar 2022 [2022] EWHC 493 (Admin); [2022] WLR(D) 111, QBD

EUROPEAN COURT OF JUSTICE — Reference to — Whether necessary: London Steam-Ship Owners’ Mutual Insurance Association Ltd v Kingdom of Spain, 01 Mar 2022 [2022] EWCA Civ 238; [2022] WLR(D) 113, CA

INSOLVENCY — Administration — Distribution of client money: In re Ipagoo LLP, 09 Mar 2022 [2022] EWCA Civ 302; [2022] WLR(D) 112, CA

PRACTICE — Discovery — Privilege: Navigator Equities Ltd v Deripaska, 11 Feb 2020 [2022] EWHC 374 (Comm); [2022] WLR(D) 115, QBD

SOCIAL SECURITY — Welfare benefits — Universal credit: SK v Revenue and Customs Comrs, 19 Jan 2022 [2022] UKUT 10 (AAC); [2022] WLR(D) 114, UT

Recent case comments on ICLR

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

NIPC Law: International Patent Litigation — Advanced Bionics v MED-El: Advanced Bionics AG v MED-El Elektromedizinische Geräte GmbH [2021] EWHC 2415 (Pat), Ch D

Law & Religion UK: Religious discrimination in employment: Bialick v NNE Law Ltd [2022] UKET 2405912/2020, ET

RPC Perspectives: Where’s the damage? High Court dismisses jurisdiction challenge in US$495 million claim: Kwok v UBS AG (London branch) [2022] EWHC 245 (Comm), QBD

UK Human Rights Blog: Victory for claimants in Sarah Everard vigil case: Leigh & Ors v The Commissioner of Police of the Metropolis [2022] EWHC 527 (Admin), DC

Free Movement: Deported man murdered by Taliban: FZ (human rights appeal, death, effect) Afghanistan [2022] UKUT 71 (IAC), UT (IAC)

Free Movement: Victim of brutal domestic abuse loses appeal against deprivation of British citizenship: U3 v Secretary Of State for the Home Department [2022] UKSIAC SC_153_2018, SIAC

Transparency Project: Protecting the identity of a child whose sibling has been killed by their parents: A London Borough Council v B [2022] EWHC 320 (Fam), Fam D

Other publications of interest

This post on Lawyer Watch by Prof Richard Moorhead discusses the question (raised recently by news that Lord Neuberger had informally advised the Post Office on its application for the trial judge to recuse himself from the Horizon IT civil claim against it) whether retired judges should return to private practice by advising clients — particularly in ongoing cases before the courts. Moorhead invited a response from Lord Neuberger who, while perhaps understandably declining to comment on the Post Office case, was prepared to comment on the broader picture. In his view, “If there had previously been a convention that former judges would not give legal advice, I believe that it had fallen by the wayside by 2017” (when he himself retired). Moorhead says he was not aware of the change having been publicly discussed or announced and “it needs a proper look”.

To mark the anniversary of the web’s invention, the World Wide Web Foundation departed from its usual letter about technical challenges and opportunities, and instead issued a statement about making donations to support independent journalism in Ukraine and other causes in support of Ukraine. Another post says The open internet in Russia must be protected. Here’s why.

Robert Barrington in the Law Society Gazette (11 March 2022, PDF edition, p 32) discusses how lawyers have been caught in the “backlash against ‘professional enablers’ in London who have facilitated the activities of the Putin circle — oligarchs and others — within the UK”. He notes that law firms and the Law Society have been caught on the back foot, issuing “defensive statements about the need to respect the rule of law” and “remaining silent on their peers’ attempts to silence journalists and prevent government action”. But, he says, “Law firms are not required to do business with corrupt oligarchs or kleptocrats or to issue aggressive strategic lawsuits against public participation (SLAPPs) — they have a choice.” Crowing about access to justice and the rule of law would be more convincing if these firms were acting at no more than legal aid rates, which somehow one doubts.

The Law Society recently updated its guidance on Conduct in Disputes, to “highlight the different duties that you may owe to the court, to clients and to third parties (such as witnesses and opponents) in litigation”. It addresses SLAPPs as well as other types of “excessive or aggressive litigation”

Article by Charlotte Tobitt in the Press Gazette about the risks to open justice from provisions in the Judicial Review and Courts Bill which will allow first magistrates’ court appearances in some circumstances to become online administrative hearings. This will deny court reporters the opportunity to find out about criminal defendants in cases due to be heard in open court, what bail conditions were imposed, and how they will plead. Though information may later be released, “fears remain that cases could be missed even after they have moved up to the Crown Court”. The MOJ has apparently justified the change in part by saying “These measures will also provide 400 extra court sitting days each year to speed up justice for victims of more serious offences.” (As to that, see our piece above about the PAC report on the trials backlog.)

Oliver Bullough in The Guardian points out some of the holes in what he describes as a “colander masquerading as a piece of legislation” — the Economic Crime Bill — identifying a number of well known ruses to avoid the supposedly effective provisions of an Act intended to clamp down on money laundering and mystery ownership by oligarchs and other not necessarily benign foreign entities.

“If the plans work as intended, oligarchs will no longer be able to anonymously own mansions and estates. Their secrets will be revealed, and they will either scuttle away like cockroaches from an overturned rock, or face prosecution from our brave police officers. Britain will cease to be a willing fence for the stolen wealth of the world; a butler to the Kremlin’s cronies.

There is just one problem with the plan, however, which is that — unless some astonishing amendments appear out of nowhere — it’s rubbish.”

Oliver Bullough has just published a book on all this, Butler to the World: How Britain Became the Servant of Oligarchs, Tax Dodgers, Kleptocrats and Criminals (Profile £20). [If anyone would like to review this for us, get in touch.]

And finally…

celebrates the recent moot held in honour of Sir John Laws, featuring top silks and top students from BVL’s legal education projects.

That’s it for this week. Thanks for reading, and thanks for all your tweets and links.

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: Central Criminal Court, Old Bailey (Shutterstock)