This week’s roundup of legal news and comment includes the UK’s response to a chemical weapons crime, plus developments in family law, domestic abuse, hate crime, civil procedure and Brexit, inter alia.
On 14 March 2018 the UK’s Deputy Permanent Representative to the United Nations, Ambassador Jonathan Allen, gave a Security Council briefing on the nerve agent attack which took place earlier this month in Salisbury.
On Sunday 4 March Sergei Skripal, a former Russian spy now living in England, and his daughter Yulia were found in Salisbury town centre in a state of near-unconsciousness on a public bench and were taken to hospital by emergency services, where they remain in a very serious condition. A policeman, Nick Bailey, was also exposed and he too remains in hospital in a serious condition. Following these events, the ambassador said:
‘Investigations by world-leading experts at the Defence, Science and Technology laboratory at Porton Down, accredited by the OPCW [Organisation for the Prohibition of Chemical Weapons] discovered that …
… Mr Skripal and his daughter were poisoned with a “Novichok”, a military grade nerve agent of a type developed by Russia.
It is not a weapon which can be manufactured by non-state actors. It is so dangerous that it requires the highest-grade state laboratories and expertise. Based on the knowledge that Russia has previously produced this agent and combined with Russia’s record of conducting state sponsored assassinations – including against former intelligence officers whom they regard as legitimate targets – the UK Government concluded that it was highly likely that Russia was responsible for this reckless act.
We saw only two plausible explanations: either it was a direct attack by Russia on my country; or Russia had lost control of a military-grade nerve agent which they had developed. We requested the Russian Government provide an explanation by the end of Tuesday 13 March on how this Russian-produced nerve agent could have been deployed in Salisbury. They provided no credible explanation which could suggest they lost control of their nerve agent.
Mr President, we therefore have no alternative but to conclude that the Russian State was responsible for the attempted murder of Mr Skripal and his daughter, and Police Officer Nick Bailey, and for threatening the lives of other British citizens in Salisbury.’
The ambassador went on to accuse Russia, not only of involvement in this particular attack, but in various breaches of the international Chemical Weapons Convention (1997), including failure to declare its own Novichok production facilities and delays in destroying stockpiles of other chemical weapons in accordance with the Convention. He also itemised other state-sponsored assassinations blamed on Russia, and said ‘Russia has a history of flouting international law’.
Proceedings in the OPCW
As well as monitoring adherence to the Convention, much of the work of the Organisation for the Prohibition of Chemical Weapons is concerned with dealing with chemical weapons attacks in conflict zones like Syria. However, last week they happened to be holding the 87th session of their Executive Council.
The UK’s permanent representative there, Ambassador Peter Wilson, made an initial statement to the council on 13 March, expressing the UK’s suspicions about Russian involvement in the attack.
This was met with a response by the Russian Federation ambassador later that day, basically accusing the UK of making ‘unfounded allegations’ in pursuit of a ‘dirty information war being waged on Russia’. If it had a serious case to answer, the UK should ‘avail itself of the procedures provided for by paragraph 2 of Article 9 of the’ Convention to ‘contact us for clarifications regarding any issues that raise doubts or concerns’ over compliance. ‘We will require material evidence of the alleged Russian trace in this high-profile case’.
The next day, the UK representative made a further statement on 14 March (updating the council on events since his statement the previous day). He said the UK had ‘engaged bilaterally with the Russian Foundation’, but
‘Russia has provided no explanation; and no meaningful response. No explanation as to how this agent came to be used in the United Kingdom; no explanation as to why Russia has an undeclared chemical weapons programme contravening its obligations under the chemical weapons convention. Instead they have treated the first ever aggressive use of a nerve agent in Europe with sarcasm, contempt and defiance. […]
Instead of engaging on the substantive concern, Russia has sought to mire us and this Executive Council in procedural argument.’
He also addressed the Russian complaint that the UK has not shared samples with them, saying ‘There are no provisions in the Convention that require the UK to share its samples collected as part of a criminal investigation with Russia in this type of scenario.’
The UK response
Having concluded and officially declared that Russia was involved, the UK has taken certain measures in response. The Prime Minister, Theresa May announced in a statement to Parliament, on 14 March, that her government would:
- expel 23 Russian diplomats who have been identified as undeclared intelligence officers
- develop proposals for new legislative powers to harden our defences against Hostile State Activity and ensure those seeking to carry out such activity cannot enter the UK
- suspend all planned high-level contacts between the UK and the Russian Federation
The UK’s response has been supported by the leaders of France, Germany and the United States in a joint statement on the Salisbury attack. In addition, other world leaders, including those of Canada, Australia, and Italy have expressed their solidarity.
Meanwhile, it’s been announced that Independent investigators from the Organisation for the Prohibition of Chemical Weapons (OPCW) will arrive in the UK on Monday 19 March to begin their own investigation into the nerve agent attack.
What offences were committed?
Suppose a person or persons were to be discovered and arrested and brought, possibly by way of extradition into this jurisdiction, for a criminal trial, what offences might they be charged with? Crimeline Complete (edited by Andrew Keogh) offers a selection in a commentary entitled The Salisbury Chemical Weapon Attack.
They include attempted murder, grievous bodily harm (GBH) (contrary to section 18 of the Offences Against the Person Act 1861), administering a noxious substance (contrary to section 23 of the 1861 Act), and offences under the Chemical Weapons Act 1996.
But aside from the difficulties of apprehending and bringing any such person(s) to trial, might be the further obstacle of a plea for diplomatic immunity.
Another mysterious death
The UK police have launched a murder investigation after the death of Russian businessman Nikolai Glushkov, who was found dead at his home in New Malden, south-west London, on 12 March. He had been granted political asylum in the UK in 2010, and became a critic of Russian President Vladimir Putin.
According to the BBC, a post-mortem examination revealed Mr Glushkov, who was 68, died from “compression to the neck”.
‘There is, at this stage, no evidence linking the death to the attempted murder of a former Russian spy and his daughter in Salisbury, police say.’
However, while the death of one Russian exile in the UK may be considered unfortunate, the death of two in the same month and in suspicious (albeit differently suspicious) circumstances, begins to look like carelessness.
Meanwhile, Russian president, Vladimir Putin was still expected to win another six-year term in the elections on 18 March. There are numerous examples of irregularities in the voting process, according to reports by the BBC.
Second Bridget Lindley Memorial Lecture
The Family Justice Council hosted the second Bridget Lindley Memorial Lecture followed by a panel discussion on 13 March in Birmingham. The lecture was given by journalist Louise Tickle, whose articles in the Guardian have highlighted issues around care cases in the family justice system, who was joined on the panel by the Andrew Pack (aka family law blogger Suesspiciousminds), Dr John Simmonds of Coram/BAAF, Mr Justice Keehan and the President of the Family Division, Sir James Munby.
The FJC will publish a transcript in due course, but in the meantime there is an excellent summary of the lecture and discussions captured by barrister Sarah Phillimore, incorporating her own live tweets and others, on the Child Protection Resource blog. Opening up a closed system: The Second Bridget Lindley Memorial Lecture.
As she records, ‘Louise was examining the game changer that is social media – no longer a niche hobby for ‘sad losers’ but something that is changing not just the way we communicate but the things we communicate about – personal, raw stories of human grief can be published by anyone, travel anywhere and be accessed at anytime.’
The lack of scrutiny and transparency in the family justice system, particularly over the often drastic decisions affecting the future lives of children and their parents, has been a complaint for some time, but social media has provided both opportunities and threats to the process.
Remarks made by the President, admitting there was still some way to go in opening up the system, were subsequently reported in the press, eg in the Telegraph: Family court secrecy lets judges get away with mistakes, senior judge says
NAGALRO annual conference
The first Bridget Lindley Memorial Lecture was given last year by Andrew McFarlane, aka Lord Justice McFarlane, who this year gave the keynote address to the NAGALRO (national professional association for guardians ad litem and reporting officers) Spring 2018 Conference, themed ‘Contact: In Whose Best Interests?’ on 12 March 2018 in London.
His address has just been published on the Bloomsbury Professional website: Contact: a point of view
What is a hate crime?
The Metropolitan Police put a notice on his website about ‘hate crime’ which has attracted some attention (ie criticism) on social media. They appear to be suggesting that something that isn’t a crime, but is believed by the complainant to have been motivated by the sort of hate that would aggravate its seriousness if it were a crime, can nevertheless be the subject of a criminal charge. Matthew Scott, on his Barristerblog, explains why that isn’t right: The Met has a problem with hate-crime. It can’t explain what it means.
Subsequently, the content on the Met’s website appeared to change…
I'm sure it's a co-incidence but @metpoliceuk appear to have comprehensively rewritten the passage.
— Matthew Scott (@Barristerblog) March 19, 2018
Economic abuse destroys lives – it must be taken seriously, by Louise Tickle (see above) in the Guardian, who says ‘The law must treat such cases like domestic violence’.
This is included as a proposal in the government’s current consultation, Transforming the Response to Domestic Abuse. For our earlier commentary on this, see David Burrows’s post here, Domestic abuse: a Government consultation and a short history.
However, doubts have been cast on the approach in the consultation, in particular some of the assumptions on which it proceeds, namely that all accusers are victims and all they accuse are perpetrators, says Penelope Gibbs on the Transform Justice blog: Guilty until proved innocent – the assumption behind the latest government consultation. ‘The word “alleged” is never used either in relation to victims or perpetrators,’ she says, ‘nor is there any reference to the rights of defendants.’
Want to be a part of legislation from the Magna Carta to the latest Act of Parliament? We are looking for new Senior Legal Editors, based at @UkNatArchives. Apply here https://t.co/FE7GGvnQHu pic.twitter.com/YbuelypRpd
— legislation.gov.uk (@legislation) March 18, 2018
The National Archives are looking for four Senior Legal Editors, initially on a fixed term appointment of 12 months, to support the editorial work required to bring legislation on www.legislation.gov.uk fully up to date, and to maintain this service. (Full details here.)
Having inherited a massive archive of legacy legislation, and faced with a continuous stream of new legislation enacted by Parliament, the free public legal information service that is legislation.gov finds itself continually playing catch-up. To put it another way, it’s facing a Sisyphean task of legendary proportions, and shortage of manpower is not helping. So one hopes these appointments will be the first of as many as it takes to get the job done, a.s.a.p. Because one of the main problems with the current free and generally very useful service from legislation.gov is its worrying lack of updatedness.
We rely on legislation.gov’s API for the search and display of legislation on ICLR.3. So does Justis for their legislation service. It’s in all our interests that the service be as reliable as possible, given that this is open data published by the government, and given how expensive it is to rely (as one otherwise must) on the version provided by the big commercial publishers.
Withdrawal and challenge
The Department for Exiting the European Union (DExEU) has published a new updated (as at 19 March 2018) version of the Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community
Meanwhile, the group Best for Britain is seeking funding to bring a legal claim against the Secretary of State at the head of DExEU, David Davis, over the need to provide a meaningful parliamentary, and possibly a public, vote on the terms of any withdrawal agreement ultimately reached by his department. You can add to the existing (at the time of writing) pledgs of £82,300 to help get them to the target of £100,000, via CrowdJustice.
Stories of the Law and How It’s Broken
The Secret Barrister, famed throughout the land for his/her/their anonymous ungendered furiously well informed critiques of the criminal law, criminal justice and criminally bad media reporting thereof, has long promised a book which, after weeks of hungry expectancy, this week finally hits the shops and online booksellers. It’s already attracting a lot of comment and appreciation.
‘Walk into any court in the land..you will be treated to uniform complaints of court deadlines repeatedly missed, cases arriving under-prepared, evidence lost, disclosures not made, victims marginalised, and millions of pounds of public money wasted.’ https://t.co/ePz1jkrzvv
— Charlie Falconer (@LordCFalconer) March 18, 2018
If you want a hard copy, may we recommend as our preferred bookseller, Wildy & Sons Ltd, who have inhabited the archway into Lincoln’s Inn practically since time immemorial. For ebook edition, you can hit the Amazon site.
A review will appear on this blog soon. (Unfortunately, such was the demand for them, there were not enough review copies to go round. So although we asked, we didn’t get an advance copy.)
Brothers in Law
A radio adaptation, first broadcast on BBC Radio 4 in July 1971, of a novel by Henry Cecil, previously adapted for film by the Boulting Brothers in the 1950s, starring Ian Carmichael and Terry Thomas. This version stars Richard Briers as the hapless pupil barrister. There will be 12 episodes. Two have been broadcast so far, on BBC Radio 4, but are still available to listen via iplayer.
Episode one: Look it up
Episode two: Tell ‘Em the Tale
Doing final trial prep whilst listening to the radio adaptation of Brothers-in-Law with Richard Briers – a glorious comedy insight into the days when pupils paid for the pleasure of pupillage. https://t.co/LHairZar9p
— Jason Braier (@JasonBraier) March 19, 2018
Social Justice: Justice Minister Dr Phillip Lee speaks at the launch of the Centre for Social Justice’s ‘A Women-Centred Approach’ report. Speech delivered on 14 March 2018.
Immigration: Immigration Detention: One Step Forward, Two Steps Back — by Sophie Walker, via UK Human Rights blog.
Legal Aid: Sixty chambers meet to condemn ‘catastrophic’ cuts, via Law Society Gazette, on criminal justice advocates’ criticism of the new AGFS payment scheme.
Civil procedure: Skeleton Arguments: Get the Font Size Right, and the Length Correct: or it Could Cost You – by Gordon Exall, Civil Litigation Brief blog, on how the court back office people are rejecting skellies that don’t appear to meet the exacting criteria laid out in the relevant Practice Direction, PD 52C, para.31(1)(b). Crucially, it says footnotes need to be at least 12 point in size and line spaced 1.5, ie no less than in the body text (which could of course be much larger). Failure to abide by these criteria could ‘result in an application (N244) having to be made, at a cost of £528, in which to correct the situation to enable this to be re-lodge but out of time’. So if you don’t want your nuts cracked with a sledgehammer, don’t just mind your Ps and Qs – mind your PDs too.
Pupillage: Training for the bar: the dos and don’ts of pupillage interviews by Tess Reidy in The Guardian (supported by the University of Law) (See also Broadcasting, above, re pupillage in the olden days.)
Media law: Round Up of Northern Ireland Decisions in 2017 – by Olivia O’Kane, via Inforrm’s blog.
Snowfake news: Silencing the President: the Free Speech implications of censoring hateful political speech online – Paul Wragg via Inforrm’s blog, examines the free speech issues round the suppression of social media accounts by far right hate-speechers.
Housing: On a Housing Court and (not) making things simpler – by Giles Peaker, on the Nearly Legal blog, discussing the options and cost(s) implications for a specialist housing court.
Intellectual property and punk rock: Who is it that doesn’t like Mondays? – Rosalind English via the UK Human Rights blog, on former Boomtown Rats, currently litigating over composition rights to “I Don’t Like Mondays”, disputing admissibility of expert report from a composer.
Law (and injustice) from around the world
Australia / Myanmar
Laywers in Melbourne, Australia have filed a private prosecution against Aung San Suu Kyi, state counsellor and de facto leader of the Myanmar government, during a visit to Australia. The prosecution is for crimes against humanity in respect of her alleged role in the deportation or forcible transfer of a population in relation to widespread and ongoing human rights abuses inside Myanmar. According to the Guardian
‘Ron Merkel QC, a Melbourne barrister and former federal court judge, international lawyers Marion Isobel and Raelene Sharp, and Sydney human rights lawyers Alison Battisson and Daniel Taylor filed the private prosecution application in the Melbourne magistrates court late on Friday.
Aung San Suu Kyi – the 1991 Nobel peace laureate whose public image has been tarnished by her unwillingness to publicly condemn military atrocities against the Rohingya – is visiting Australia as part of the Asean Australia special summit, hosted by the federal government in Sydney.’
The move recalls the action taken against the former Chilean dictator, Augusto Pinochet, who was arrested in London in 1998, acting on an extradition request from Spain, and was kept under house arrest, but did not in the end face trial. Aung San Suu Kyi was herself kept under house arrest for many years by the military junta that rules Myanmar, in defiance of her democratic support, and was awarded the Nobel Peace Prize, but her reputation as a saint of nonviolent opposition seems less secure in view of her apparent reluctance to intervene with the violent Rohingya expulsions.
The UK Human Rights blog reports this week that
‘The President of the Philippines has announced that the country is to withdraw from the International Criminal Court, after it opened a crimes against humanity investigation into his vicious war on drugs, which has claimed the lives of an estimated 8,000 people since he took office.’
They cite a Guardian report on escalating tensions after
‘The Philippine government angered the UN after one of its human rights investigators was included on a list of 600 people declared to be communist terrorists. […] The UN said the accusations were an act of retaliation for Tauli-Corpuz’s recent criticism of the attacks on and killings of indigenous Lumad people in the Philippines. It said the claims violated the UN convention on human rights.’
Ireland / Poland
There has been widespread Polish anger directed at an Irish high court judge, Justice Aileen Donnelly, after she refused to extradite a suspected drugs trafficker to Poland due to concerns about the integrity of the Polish justice system. Instead, she referred the case to the European Court of Justice because, the Guardian reports,
‘recent legislative changes to the Polish judicial system had been “so immense” that Ireland’s high court had been forced to conclude that the rule of law in Poland had been “systematically damaged”, undermining the “mutual trust” that underpinned the European arrest warrant process.’
The changes affected the independence of the judiciary, by giving parliament and the executive greater powers to appoint and dismiss judges. Ms Justice Donnelly cited an EU Commission document which she said set out, in stark terms ‘what appears to be the deliberate, calculated and provocative legislative dismantling by Poland of the independence of the judiciary.’
The vituperation directed at Ms Justice Donnelly included references to her private life. These were condemned by the Association of Judges of Ireland and the European Association of Judges (EAJ) as “unacceptable”, according to the Irish Independent:
‘”In a democracy any citizen is entitled to criticise a ruling of a court. However, the disapproval should not be addressed in a manner that encourages a culture of disrespect for the judiciary and, in any case, should never be directed at a judge personally but to the decision itself,” the EAJ statement said.’
And finally… Tweet of the week
Tomb Raiders of the lost archeology – trusts, succession and powers of attorney are just some of the legal issues justifying James Lee’s trip to the cinema
Tonight I am watching Tomb Raider as I gather it raises some issues relating Trusts and Succession.
Not yet sure if it’ll make it to the footnotes of Modern Equity…
— James Lee (@jamessflee) March 19, 2018
— James Lee (@jamessflee) March 19, 2018
That’s it for now. Thanks for all your retweets and suggestions. We’ll have more content next 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.