Weekly Notes: legal news from ICLR, 16 October 2023
This week’s roundup of legal news includes prisons and sentencing, the legal profession and the senior judiciary. Plus recent case law and commentary.… Continue reading
The prison population is now double what it was 30 years ago, and it costs around £47,000 a year to keep each prisoner locked up. From time to time, the minister in charge of prisons (currently the Secretary of State for Justice, aka Lord Chancellor, but previously it was the Home Secretary) wakes up and decides this is crazy and there might more cost-effective ways of making bad people behave themselves.
So, for example, about 13 years or 10 Lord Chancellors ago, Ken Clarke QC MP as he then was noticed that the prison population at 85,000 was double what it had been when he was Home Secretary in the early 1990s, and suggested that short prison sentences were not effective in cutting reoffending rates. He proposed instead that offenders should be given community sentences. (See Guardian, Ken Clarke signals ‘more sensible’ prison sentencing policy.)
“It’s not to be soft on sentencing, it’s to be sensible on sentencing, and bear in mind everybody who is sent to prison costs more than it costs to send a boy to Eton.”
Fees for Eton are currently £15,432 per term, or £46,296 per year, so the comparison still holds good. Perhaps only just. As for Ken Clarke’s proposals, it wasn’t long before he was replaced as minister by Chris Grayling MP, whose memorable contribution to the penal system was the disastrous (and later reversed) privatisation of probation services. He was succeeded by Michael Gove MP, who spoke of prison reform to unlock the “treasure in the heart of man” and announced a Bill to model some prisons on academy schools, with league tables and provision for failing jails to be taken over by more successful prisons — or perhaps Eton? (Guardian, Michael Gove announces plans for ‘reform prisons’)
He was succeeded by Liz Truss MP who announced “the biggest overhaul of prisons in a generation and the delivery of a world-class court system” — a transformation perhaps as hollow-sounding, now, as her infamous prime ministerial budget.
The point is this: Lord Chancellors come and go (six more have come and gone since Truss, one of them twice); the whirligig of time brings in the idea of prison or sentencing reform every few years, and while it is sometimes based on the idea of improving rehabilitation, just as often it’s a desperate bid to cut the cost of incarceration. In a year when the government is facing electoral defeat, its fear of tabloid accusations of being “soft on crime” and “letting down victims” will probably ensure that Alex Chalk KC MP LC’s proposal will last no longer than some of his predecessors’ bold initiatives.
As if to make that very point, today’s email alert from the Attorney General’s office (which appeals against unduly lenient sentences) boasts:
Other recent proposals to solve prison overcrowding include boarding out prisoners to overseas service providers, a bit like refugees and asylum seekers, as Joshua Rozenberg discusses on A Lawyer Writes: Prisoners face the Rwanda option.
Social media guidance
Last month the Bar Standards Board, which regulates barristers in England and Wales, issued revised Social Media Guidance, and new Guidance on the Regulation of Non-Professional Conduct. The new guidance follows a consultation on conduct in non-professional life, and seeks to clarify where the regulatory boundaries lie in relation to conduct that occurs outside the scope of a barrister’s professional practice. Explaining the guidance on social media, the BSB said:
“The revised Social Media Guidance seeks to help barristers understand their duties under the BSB Handbook as they may apply to their use of social media, both in a professional and in a personal/private capacity. The sort of conduct that we may be concerned with includes: the use of language that is seriously offensive, discriminatory, bullying or harassing; linking to or reposting such content without indicating disagreement with it; gratuitous attacks on the judiciary or the justice system; or posting content which might breach client confidentiality. The Social Media Guidance also seeks to make clear that it is the manner in which barristers express their views that is more likely to concern us rather than the substance of that view (although the substance of a barrister’s view may also raise regulatory issues).”
One of the commonest sights on X/Twitter (as we are sort of getting used to calling it) is barristers “humblebragging” about awards and the lavish endorsements they receive in professional directories such as the Legal 500. “Delighted to be rated ‘the leading senior junior specialising in credit hire fraud defence work in the East Midlands Circuit’…” — you know the kind of thing. Well, if you’re lucky enough to win an award, fair enough, brag about it; but don’t forget the rule that is not contained in anything published by the BSB, namely to make a donation to Billable Hour.
Serious congratulations to Albion Chambers in Bristol, by the way, who show us nicely how it’s done:
Supreme Court appointment
The King has approved the appointment of Lady Justice Simler as a Justice of the Supreme Court of the United Kingdom. She will join the highest court in the land on 14 November 2023, following a distinguished earlier career at both Bar and Bench. She replaces Lord Kitchin, who retired last month, leaving the court with only 11 members.
Dame Ingrid Simler was called to the Bar by Inner Temple in 1987, having read law at Cambridge University, and completed a post-graduate diploma in EU law at the Europa Institute, University of Amsterdam. She practised at the Bar at Devereux Chambers (where she became Head of Chambers before becoming a judge). She became a High Court judge in what was then the Queen’s Bench Division in October 2013 and was President of the Employment Appeal Tribunal from 2015 to 2018. She became a Lady Justice of the Court of Appeal in June 2019.
According to Joshua Rozenberg, Simler joins the Supremes:
“Though she may appear quiet and unassuming, Simler has a formidable intellect. Her rapid 10-year progress from High Court to Supreme Court is a sign of how highly she is regarded by her fellow judges. Simler’s appointment will be widely welcomed.”
Welsh language and justice
As one of her first public appearances since being appointed earlier this month, the Lady Chief Justice, Lady Carr gave a speech at the 2023 Legal Wales Conference. As well as recalling her many family and professional connections to Wales she noted that, with Devolution from 1998,
“For the first time since the Laws of Wales Acts of 1535 to 1542, we see a growing body of distinct Welsh law, both substantive and procedural. That this is so brings into ever sharper focus the pressing needs of the courts and tribunals to adapt to ensure that they can deliver timely, practical and effective justice in Wales.”
She emphasised the importance of language in providing access to and understanding of the law:
“It is a matter of fundamental principle that individuals, whether they be litigants, witnesses, or members of the public with no direct interest in a particular dispute, can readily understand what goes on in our courts and tribunals. For litigants, it is a fundamental matter of access. The ability to understand proceedings, the precise claim being made or the nature of the defence being advanced, and the evidence being deployed on all sides, is required by principles of due notice, effective participation and equality of arms. Linguistic access to justice is quite simply inherent in the right to a fair trial. For the public, that they are able easily to understand what goes on in our courts and tribunals is required by the principle of open justice. Linguistic exclusion is inconsistent with a proper commitment to open justice.”
This is as true of the terminology used in the law, as of the language itself, and always bears thinking about in relation to open justice and transparency. (Otherwise, of course, it would be simpler if we all just went on using ancient Latin, or medieval Law French.) Lady Carr went on to suggest, rather interestingly, that:
“Another development, and probably for the slightly longer term, that we — and perhaps Legal Wales or the recently created Law Council of Wales — could look at, is the use of artificial intelligence to promote Welsh language accessibility of our courts.”
AI is, of course, flavour of the year, in legal information circles, and while the Incorporated Council of Law reporting for England and Wales may not be quite there with a Welsh language version of its reports of leading case law, if AI can provide a solution we might be very interested to look at it. In the meantime we are using AI in our existing service in the form of Case Genie, which helps find cases other search methods may not succeed in doing so.
Lord Chief looks back
Meanwhile, Lady Carr’s predecessor, Lord Burnett of Maldon, is the lead feature in Counsel magazine this month, where he is interviewed by Anthony Inglese about some the cases and developments during his six years in office, alongside a rotating array of six Lord Chancellors (see first item above).
His tenure has coincided with that massive, budget-busting, repeatedly delayed (surely “extended”) HMCTS Reform project, to digitise court processes — something given a massive booster injection during the covid pandemic, when crumbling courts and technophobic lawyers were suddenly forced to enter a virtual world of online justice, and surprised to find it actually… quite convenient. (But then, the backlog! Which was already there, and only got worse. And the barristers’ strike! Surely no previous government would have allowed either to happen.) (Neither is mentioned in the article in Counsel.)
There have been some notable, if slowcoming, gains. The broadcasting of sentencing remarks was a project that seemed to take almost the entire period of Lord Burnett’s tenure to reach fruition, and is a small but significant step in the direction of more transparency. There has been a lot of interesting in open justice more generally during his tenure, with the Commons Justice Committee and the Ministry of Justice both conducting public consultations, and the President of the Family Division, Sir Andrew McFarlane conducting his own Transparency Review. For more on this, see this review of his speech, given shortly before leaving office, Open Justice Today– speech by the Lord Chief Justice.
But as the Counsel article makes clear, what really distinguishes a Lord or Lady Chief Justice, however busy in their management role, is their performance as a judge, in the important cases which come into their court (which, incidentally, is one of the most splendid in the Royal Courts of Justice: see Tweet of the week) and often concern matters of constitutional import. It will be his judgments, reported in the Law Reports, that stand as his primary contribution to the law.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
BANKRUPTCY — Order — Annulment: Khan v Singh-Sall, 06 Oct 2023  EWCA Civ 1119;  WLR(D) 406, CA
CHILDREN — Medical treatment — Best interests: A Health Board v AZ (Termination of Pregnancy: Guidance), 11 Oct 2023  EWHC 2517 (Fam);  WLR(D) 413, Fam D
CONSUMER PROTECTION — Contract — Unfair terms: Glaser v Atay, 12 Oct 2023  EWHC 2539 (KB);  WLR(D) 417, KBD
DATA PROTECTION — Enforcement — Complaint: R (Delo) v Information Comr, 10 Oct 2023  EWCA Civ 1141;  WLR(D) 407, CA
EMPLOYMENT — Redundancy — Consultation: EI v SC Brink’s Cash Solutions SRL, 05 Oct 2023 (Case C-496/22); EU:C:2023:741;  WLR(D) 424, ECJ
INJUNCTION — Anti-suit injunction — Restraint of foreign proceedings: Deutsche Bank AG v RusChemAlliance LLC (SQD v QYP), 11 Oct 2023  EWCA Civ 1144;  WLR(D) 412, CA
JUDICIAL PRECEDENT — Ratio decidendi — Whether binding: SOCIAL SECURITY — Contributory benefit — Bereavement support payment: R (Jwanczuk) v Secretary of State for Work and Pensions, 11 Oct 2023  EWCA Civ 1156;  WLR(D) 414, CA
LANDLORD AND TENANT — Business premises — Security of tenure: Gill v Lees News Ltd, 12 Oct 2023  EWCA Civ 1178;  WLR(D) 416, CA
MENTAL CAPACITY — Medical treatment — Costs: In re VA, 13 Oct 2023  EWCA Civ 1190;  WLR(D) 425, CA
REVENUE — Value added tax — Exemptions: Target Group Ltd v Revenue and Customs Comrs, 11 Oct 2023  UKSC 35;  WLR(D) 421, SC(E)
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
A Lawyer Writes: SAS book blocked: R (Craighead) v The Secretary of State for Defence  EWHC 2413 (Admin), KBD
RPC Perspectives: Mental Health Act v Mental Capacity Act: How to avoid a deprivation of liberty claim: Manchester University Hospitals NHS Foundation Trust v JS  EWCOP 33, Ct of Protection
RPC Perspectives: A Tax On Conscience? A Moral Dilemma for Non-Residents: Revenue and Customs Comrs v A Taxpayer  UKUT 182 (TCC);  STC 1498, UT
Out-Law: English court reminds construction contract payment provisions to be ‘compliant’: Lidl Great Britain Ltd v Closed Circuit Cooling Ltd (t/a 3CL)  EWHC 2243 (TCC), Ch D
Global Freedom of Expression (Columbia University): Bavčar v. Slovenia: contracts expression: Bavčar v Slovenia (Application no. 17053/20), ECtHR
Global Freedom of Expression (Columbia University): Société Editrice de Médiapart and Others v. France: contracts expression: Société Éditrice de Mediapart et autres v France (Appn nos. 281/15 and 34445/15); Press release, ECtHR
Nearly Legal: Homelessness and evidence: R (Yabari) v Westminster City Council  EWHC 185 (Admin);  PTSR 1039;  WLR(D) 71, KBD
Local Government Lawyer: Offers of accommodation and the public sector equality duty: Webb-Harnden v Waltham Forest London Borough Council  EWCA Civ 992;  WLR(D) 363, CA
QMLR: Departing from Guidelines and Balancing of Risks in Different Medical Settings: O’Brien v Guy’s & St Thomas’ NHS Trust  EWHC 2735 (KB), KBD
QMLR: An end to the Plus of Galbraith in Inquests?: R (Police Officer B50) v East Riding of Yorkshire and Kingston Upon Hull Coroner  EWHC 81 (Admin), DC
Gatehouse Chambers: Case comment: NZP Ltd v Boydell  EWCA Civ 373, CA
Pump Court Chambers: Catherine Ellis considers the recent case of G and H (Leave to Revoke Placement Order)  EWCA Civ 768;  WLR(D) 296, CA
Nearly Legal: Mental health and security of occupation: R (Shamsul Islam) v The London Borough of Haringey  EWHC 3933 (Admin), KBD
Blackstone chambers: The High Court has handed down its first decision on an application brought under s.38 of the Sanctions, Anti-Money Laundering Act 2018 (“SAMLA”) in respect of the Russia (Sanctions) (EU Exit) Regulations 2019 (“Russia Sanctions Regulations”): Dalston Projects Ltd v Secretary of State for Transport  EWHC 1885 (Admin), KBD
Tweet of the week
Says farewell to Mostyn J who recently retired.
A wiggery of barristers for Mostyn Js valedictory… queues out the door … befitting such a career and impact pic.twitter.com/hNwgrcispg
— Charles Hale KC (@twitbarrister) October 3, 2023
That’s it for now. Thanks for all your tweets and toots and threads. Enjoy the rest of the week.
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.