This week’s roundup of legal news and comment includes court closures, video links, absconding bail, the right to be forgotten and media regulation.

Courts

Less physical more virtual

As part of the massive HMCTS Reform programme, old and under-used courts are being closed and others refurbished, as the justice system gears up for a world in which fewer and fewer cases will be heard in a live physical courtroom and more and more of them in a virtual or online environment.

The problem is that some courts are being closed in the face of strong local opposition, in places where public consultation has indicated high demand for their continued use. The consequences of closure often include increasing travel costs and delays for litigants and professionals.

HMCTS claims the process is part of a rationalisation of physical court space, in anticipation of the increasing use of online court procedures. This week has also seen an announcement from the HMCTS about a pilot of video hearings for some tax appeal hearings. They say:

‘Video technology is already used in criminal courts to allow some victims and witnesses to give evidence without having to come face to face with the accused … This pilot is taking this concept a step further – with all attendees, including the judge, participating in the hearing via video technology.’

The announcement provoked some facetious commentary from lawyers on Twitter over its assurance that ‘HMCTS are working closely with the judiciary to ensure the majesty of a physical courtroom will be upheld.’

Most modern court rooms are not particularly majestic, but presumably what they meant was the majesty of the law – the ‘Dieu et mon droit’ of it, the ‘be upstanding in court’ and ‘may it please your Lordship’ of it, the formality in other words – that video hearings may struggle to replicate.

They may struggle in other ways, too, however. Technically, video technology and the courts have not been easy bedfellows. As Penelope Gibbs pointed out in a recent post on the Transform Justice blog, (Does the digital court reform programme risk more “enemies of the people” accusations?)

‘Last week  some twitter wags pointed out that in having huge technical problems with video links (“I am going to go ballistic – and it won’t be pretty”), Lord Justice Leveson was getting a taste of  his own medicine, given he is a champion of their greater use. He would surely respond that he is in favour of video links that work, but one of the inherent problems with video links is that in the eighteen years of their use, the technology has never worked well.’

She also points out that video links can have a deleterious effect on the administration of justice (as contrasted with the efficient disposal of cases):

‘Already there is evidence that defendants find it far more difficult to communicate with their lawyer and the court if on video. And that this leads to more negative outcomes – more imprisonment and, in the case of immigration bail cases, extended detention.’

She argues that much of the development for video hearings has been done in the absence of evidence-based research, and that the recent tendency for senior judges to get involved in the process of court reform could endanger their independence and expose them to the risk of a public backlash.

In a subsequent post, Court closures – trying to get a quart into a pint pot? Gibbs comments on the recent court closures, with more expected soon, and asks ‘How many courts do you need to close before the system grinds to a halt?” She has produced a briefing on court closures with advice on how to take part in the consultations.

This identifies a number of issues around the closure of courts and the transfer of business to virtual or video hearings. One of the major casualties may be open justice itself:

‘Reduced access to courts matters because public understanding of the criminal justice system is already low, but it is that very understanding which aids access to justice and effective participation.

Virtual and online courts threaten open justice itself. If no one is present in court and all parties are on iPads/phones/video, it is not clear how witnesses and the general public will be able to observe court hearings. HMCTS has talked of creating special booths in courts, where people will be able to watch individual screens and listen to a hearing using headphones. However, no plans have been published as to how exactly they intend to make fully virtual hearings “open”.’

She is not the only one sounding alarm bells. In a recent article in The Conversation, Stephen Clear suggests that: UK criminal justice is at breaking point after years of unstable leadership

He identifies a number of problems in addition to court closures, such as legal aid cuts, and suggests that part of the problem is a lack of leadership in the form of a Lord Chancellor and Secretary of State for Justice who understands the law. Another warning of crisis came recently from a barrister, Andrew Taylor, interviewed on the BBC Wales’ Sunday Politics programme, who highlighted the recent problems associated with the disclosure of evidence by the police and CPS, and the pressure on the system following the closure of Key Forensic Services (KFS).

See also: Owen Bowcott in The Guardian, Justice system at ‘breaking point’ over digital evidence

Extradition

Assange arrest warrant upheld

Julian Assange failed to convince the Chief Magistrate of Westminster Magistrates’ Court, Senior District Judge Emma Arbuthnot, that an arrest warrant issued under section 7 of the Bail Act 1976 following his failure to surrender to bail, was invalid and should be withdrawn because the underlying extradition proceedings had been terminated and no proceedings under section 6 of the Act for an offence of absconding bail have been initiated.

Having held, in a judgment given on 6 February that the arrest warrant was valid, the Chief Magistrate gave a further judgment a week later, on 13 February, on the question whether it was in the public interest that proceedings should be initiated under section 6, for absconding. She held that it was.

Mr Assange did not attend court on either occasion. A number of objections were made on Mr Assange’s behalf by his counsel (who did turn up on both occasions), including his fear of being extradited to the USA, a report two years ago by a UN Human Rights Council Working Group on Arbitrary Detention concluding that his situation in the Ecuadorian Embassy was disproportionate and unreasonable (which we commented on at the time: see Weekly Notes – 5 February 2016), and the deleterious effect his confinement there was having on his health. All were rejected. The Chief Magistrate concluded, pithily, at paras [59] to [62] :

’59. When considering the public interest I have regard to the consequences of his failure to appear, one of which is the drain on resources that policing Mr Assange’s choice has caused. I have regard too to the losses incurred by his sureties. I must look at the impact on public confidence in the criminal justice system if Mr Assange is allowed to avoid a warrant for his arrest by staying out of reach of the police for years in conditions which are nothing like a prison. The failure to surrender was deliberate and occurred after the defendant had been able to challenge the original order all the way to the Supreme Court.

60. The impression I have, and this may well be dispelled if and when Mr Assange finally appears in court, is that he is a man who wants to impose his terms on the course of justice, whether the course of justice is in this jurisdiction or in Sweden. He appears to consider himself above the normal rules of law and wants justice only if it goes in his favour. As long as the court process is going his way, he is willing to be bailed conditionally but as soon as the Supreme Court rules against him, he no longer wants to participate on the court’s terms but on his terms.

61. I have had to consider whether it is proportionate not to withdraw the warrant for his arrest. On the one hand he is a man who has failed to attend court and has thwarted the course of justice but on the other he has been unable to leave a small flat for a number of years and is suffering physically and mentally as a result.

62. Having weighed up the factors for and against and considered Mr Summers’ arguments I find arrest is a proportionate response even though Mr Assange has restricted his own freedom for a number of years. Defendants on bail up and down the country, and requested persons facing extradition, come to court to face the consequences of their own choices. He should have the courage to do so too.’

 

 

Media regulation

Who is now the more effective regulator, Stop Funding Hate or IPSO?

In its article, Center Parcs Joins Southbank Centre By Scrapping Advertising In Daily Mail After ‘Homophobic’ Column On Tom Daley, HuffPost reported last week on how the campaign group, Stop Funding Hate, had successfully lobbied a number of companies to pull their advertising from the Daily Mail after it published an arguably homophobic comment piece by Richard Littlejohn on the topic of same sex parenthood under the title “Please don’t pretend two dads is the new normal.”

HuffPost quoted various tweets including this one by Caitlin Moran,

https://twitter.com/caitlinmoran/status/964408653968064512

The article did contain some textual content among the tweets, including a quote from Stop Funding Hate’s founder, Richard Wilson:

“The Daily Mail is increasingly out of touch with the views of mainstream British society – and it’s no surprise that more and more advertisers are distancing themselves. A recent YouGov poll found that 58% of people believe that companies should withdraw their advertising if it is placed next to content they think is racist, sexist, homophobic or xenophobic. The same poll found that barely 10% of people believe that the Daily Mail has a positive influence on our society.

A lot of the companies quoted, including the Co-op and Nat West bank, said the ads had appeared next to the article by virtue of a third party process over which they had little control, though they were evidently embarrassed by the fact and said they would investigate. On the other hand, the frozen food shop Iceland said robustly they would continue to advertise where they could reach customers, and they would rethink their policy if customers stopped buying the paper – thus squarely placing the onus of regulation or censorship or whatever you want to call it on the Daily Mail’s readers (whose routine unmoderated below-the-line comments on the Mail Online site would tend to suggest a position on this somewhat further away from Stop Funding Hate than even the article complained of).

The campaign to persuade advertisers not to fund hateful content in the newspapers is not confined to the Daily Mail. But if its effect is, eventually, to persuade the Daily Mail to tone its content down, it will have achieved something that IPSO, the official (self) regulatory body to which the Daily Mail subscribes for all its regulatory needs, has not even attempted to do.

Article 12 of the Editors Code deals with discrimination:

12. Discrimination

i) The press must avoid prejudicial or pejorative reference to an individual’s, race, colour, religion, sex, gender identity, sexual orientation or to any physical or mental illness or disability.

ii) Details of an individual’s race, colour, religion, gender identity, sexual orientation, physical or mental illness or disability must be avoided unless genuinely relevant to the story.

Using IPSO’s website search engine to look for rulings, one struggles to find cases where the regulator has ever upheld a complaint based on article 12 and then applied a sanction of any stringency.

One such was the case brought by  Trans Media Watch on behalf of a parliamentary candidate, Emily Brothers, against The Sun over comments in a column by Rod Liddle containing ‘crude’ and ‘belittling’ (perhaps that should read ‘beLiddling’) observations about her disability and gender identity. You can read the case here.

But an article by Lynn Barber about a Sudanese refugee whom she regretted having sheltered, published in the Sunday Times and then recycled in the Daily Mail, which prompted complaints by Mohammed Ahmed against both papers, was upheld on breach of accuracy (clause 1) and privacy (clause 2) but not discrimination under clause 12.

There are quite a few results where IPSO has upheld a complaint under article 1 on the basis that the content was inaccurate, without finding that its inaccuracy constituted discrimination, which is something that could presumably be argued in some cases. After all , if you were to publish the comment that ‘all gay people are fat bastards’, IPSO might uphold a complaint for inaccuracy, because manifestly that isn’t true. But wouldn’t it also be discriminatory? Does something have to be accurate before it can be discriminatory?

Perhaps the question should be, would you have published the same inaccurate things about someone who did not share this person’s race, colour, religion, sex, gender identity, sexual orientation or any physical or mental illness or disability?

It would be interesting to know whether potential advertisers take any cognisance of the rulings of the regulator, as opposed to the now quite widely publicised complaints of Stop Funding Hate.

UPDATE

On Tuesday 20 February at the next evidence session for the inquiry into Hate Crime, the Commons Home Affairs Select Committee will hear from campaigners who have raised the issue of anti-Muslim hate and sentiments in print media, and from the UK press regulators, who have responsibility for maintaining standards and investigating complaints. It will be interesting to see what the various campaigners and regulators (including the chair of IPSO) will say.

UPDATE 2

Following that hearing, Brian Cathcart in Byline reported how the committee chair Yvette Cooper’s first question demolished any idea that article 12 was being used as an effective tool of regulation:

‘You told us that you had had 8,148 complaints in a year that cited clause 12. Of those, only one was upheld on the grounds of clause 12 . . . Is that right?’ (Q294)

See: Select Committee savages IPSO for failing to protect Muslims 

 

Data protection

Rehabilitation of offenders and the right to be forgotten

As the Data Protection Bill awaits its passage through the Commons, and the national gears up for the implementation of the GDPR, two recent decisions highlight the concerns over the risk of information about criminal convictions remaining accessible long after its relevance is exhausted.

In HA v University of Wolverhampton  [2018] EWHC 144 (Admin) a student successfully claimed judicial review of the decision of the University of Wolverhampton to exclude him from a Master of Pharmacy course after failing to declare two ‘spent’ convictions he had received at age 15.  The judgment is worth reading in full because, although the decision making process was flawed, the judge, Julian Knowles J, does not say the student should not have been required to disclose the convictions in the circumstances.

The judge had made an order under Civil Procedure Rules, r 39.(4)(2) anonymising the claimant, to prevent reporting of the case destroying the whole point of litigating it. Something similar happened in the other case, which was actually two cases that will be heard separately but were considered together at the pre-trial stage.

The two claimants (NT1 and NT2) are individuals who have previously been convicted of criminal offences, but who have both now been “rehabilitated” under the Rehabilitation of Offenders Act 1974. They are seeking orders against Google requiring it to remove details of those convictions from its search engine results, relying on their ‘right to be forgotten’ as established in Google Spain SL –v- Agencia Espanol de Proteccion de Datos (AEPD) (Case C-131/12, 13 May 2014) [2014] QB 1022.

The cases have yet to be heard, but when they are heard, it will be on the basis that the claimants remain anonymous (their identity concealed behind pseudonyms) pursuant to an order made by Warby J, on 15 February 2018: NT 1 & NT 2 v Google LLC [2018] EWHC 261 (QB). It was the second of the two preliminary judgments, made after hearing the representations of the media parties who did not have a chance to be heard before the first order, made by Nicklin J on 18 January 2018: [2018] EWHC 67 (QB).

The order also prohibits the publication of information which may be available to the public attending the trial in open court, or otherwise in connection with the proceedings, which might lead to the identification of the claimants. But it does not inhibit reporting of anything said in any public judgment of the Court, or the contents of any document which is on the Court file and accessible to the public as of right, without the Court’s permission.

As Nicklin J observed at the conclusion of the first judgment: ‘The reporting of this case presents challenges in striking the correct balance between open justice and the need to ensure that the Court process itself does not destroy what the Claimants are seeking to protect.’

Considering the case in response to the further submissions of the media, in the second judgment, Warby J explained the importance of the open justice principle and the need to restrict it only in the most limited and necessary circumstances. The court had jurisdiction in this case to do so, in order to protect the subject matter of the litigation, under section 11 of the Contempt of Court Act 1981 and/or the Court’s inherent jurisdiction, CPR 1, 3 and 39.2(4), and s 6 of the Human Rights Act: see paras 20-27.

ICLR News

We’ve done some ads. They’re quite fun. You may see them in the tube stations at Temple and Chancery Lane, as well as in your favourite legal publications and on websites such as Legal Cheek and Internet Newsletter for Lawyers.

We’ve also done some cakes, in aid of the Great Legal Bake. You can read about them in our recent post, Cakes-at-law: from Magna Cakea to the Great Legal Bake 

Other reads and roundups

Media law

Transparency Project: Media litigation: user group meeting – 15 February 2018

Report on a meeting last week, chaired by Warby J, of the Queen’s Bench Division Media and Communications List User Group (MACLUG) which discussed, inter alia, the transfer of cases from other divisions and ‘cross-ticketing’, the notification of applications for reporting restrictions, the statistical recording of injunctions granted, and the help to be given to litigants in person in media and data protection cases.

Employment

Independent, Workplace sexual harassment inquiry launched by Women and Equalities Committee

The committee has announced that it is launching a new inquiry into sexual harassment in the workplace and how misconduct can be tackled more effectively, amid a slew of public cases and complaints in recent months. The inquiry will also assess the advantages and disadvantaged of using non-disclosure agreements in sexual harassment cases, and what can be done to prevent the inappropriate use of such NDAs.

Crime

Matthew Scott, BarristerBlogger: The proposed ban on circumcision in Iceland raises some uncomfortable questions about our own law

The questions relate to the equivalence or otherwise of male circumcision to female genital mutilation, and the arguments in favour of criminalising the one and not the other in the UK.

Data protection

Out-Law, GDPR not at odds with FCA Handbook, say UK authorities

New data protection laws are not at odds with regulatory requirements imposed on companies in the financial services sector, two UK authorities have said.

“Firms have asked us about their ability to comply with both the GDPR and rules made by the FCA,” the authorities said in a joint statement. “We believe the GDPR does not impose requirements which are incompatible with the rules in the FCA Handbook. Indeed, there are a number of requirements that are common to the GDPR and the financial regulatory regime detailed in the Handbook.”

How do you read this blog?

After a very unscientific survey, it transpired that nearly half of our readers (46%) read this blog on a tablet. The next largest number (31%) read it on a desktop or laptop computer. However, nearly a quarter of you (23%) read it on your phone. We are aware that the images are sometimes squashed on the smaller screen and are working on a method of getting them to resize properly, in either portrait or landscape mode.

The main thing is, keep reading! We’ll have more next week. Thanks to all of your who flagged up stories via your blogs or on Twitter.

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.