This week’s roundup of legal news and comment includes an Act of Withdrawal, new judges, anonymised litigants, legal books and bullies, and a bit about ICLR. Plus murder and unwanted criminal connections overseas.

Legislation

EU Withdrawal Act

The Queen gave her formal assent to the passage of the European Union (Withdrawal) Act 2018, which you can read on ICLR.3 – although not in the vellum edition which will presumably be created for the famous parliamentary library depicted in our featured image (via UK Parliament on Flickr creative commons), or in the signed first edition which was presented to government ministers whose blood, sweat, tears and loyalty had been tested to the limit in its drafting and passage through Parliament.

For commentary on the finished Act, see

Other Brexit news

Meanwhile, at last week’s EU Summit, most of the discussion was over collective action to deal with refugees and mass migration into Europe, with Brexit barely getting a mention. That’s because the UK government has yet to publish its white paper (expected in the next week or so) on what, in the end, it expects to achieve in terms of a future relationship with the other 27 EU nations. (This is perhaps something that might have been considered BEFORE holding a referendum to ascertain the will of the people, but there you go, essay crisis and all that.)

For a useful guide and explainer to the meeting, see Obiter J, Law and Lawyers blog, European Council – June 2018

Last week a letter In the Guardian, signed by a number of female parliamentarians, businesswomen, campaigners and others, highlighted the real risk of losing hard-won rights after Britain leaves the EU. It points out that while negotiations focus on customs and trade, little thought has been given to the effect of leaving the ambit of the EU Charter of Human Rights, and the many employment and social protection rights derived from the EU treaties and directives, as interpreted by the case-law of the European Court of Justice.

Judiciary

New appointments

The UK’s top court has appointed three new justices, to replace those who are retiring. Lady Justice Arden DBE and Lord Justice Kitchin will join the Supreme Court on 1 October 2018, followed by Lord Justice Sales on 11 January 2019.

They will replace Lord Mance, former Deputy President of the Court, who retires in June 2018, and Lord Hughes and Lord Sumption who are due to retire in August and December 2018 respectively.

Meanwhile the Court of Appeal has been boosted with the appointment of Mrs Justice Nicola Davies, Mrs Justice Rose and Mrs Justice Simler as Lady Justices of Appeal, and Mr Justice Baker, Mr Justice Green, Mr Justice Haddon-Cave and Mr Justice Males as Lords Justices of Appeal. You can read their biographies on the Judiciary site. The appointments follow those from the Court of Appeal to the Supreme Court, and that of Sir Andrew McFarlane as the President of the Family Division.  

Meanwhile the Law Commission has announced this its new chair will be Mr Justice Green, who sits in the Queen’s Bench Division and is currently a presiding judge of the South Eastern Circuit. Before becoming a judge in 2013 he had been chair of the Bar in 2010. He replaces the current chair, Lord Justice Bean.

Data Protection

ECJ rulings anonymised

The Court of Justice of the European Union has announced that from 1 July 2018, requests for preliminary rulings involving natural persons will be anonymised. The reason for this is GDPR – the General Data Protection Regulation which caused everyone so much distraction and entertainment (or panic stations) a month or two ago. The court’s announcement explained:

‘Since the new General Data Protection Regulation (GDPR) has just come into force,  preceding the regulation which will soon apply to the European Union institutions, the Court of Justice has decided to increase the protection of the data of natural persons in publications concerning requests for preliminary rulings.’

Instead of names, initials will be used. Unless natural persons opt out, the practice will apply to the full life history of a case – not just preliminary rulings it seems:

‘These new guidelines, which do not affect legal persons and from which the Court of Justice may derogate in the event of an express request from a party or if the particular circumstances of the case so justify, will apply to all publications made as part of the handling of the case, from its lodging until its closure (notices to the Official Journal, Opinions, judgments…), and to the name of the case.’

In some cases, where for example the subject matter of the case is the right to privacy and the risk of exposure, it may make sense to anonymise the parties. See, for example, the ‘right to be forgotten’ case in Germany discussed below (see ‘Murderers had no right to be forgotten’). But where a competent adult litigant commences proceedings against another party, there is normally no presumption of anonymity, and open justice would tend to require such a person to be identified in open court, and named in any fair and accurate report of the proceedings. So the question must be, whether this diktat from the ECJ amounts to a reporting restriction order (or RRO, as it would be known in England and Wales) or is merely a statement of the court’s own practice which need not bind a reporter (subject to their own obligations under GDPR as a data processor or controller).

Media barrister Greg Callus of 5RB chambers commented, on Twitter:

‘This is generally regressive from an Open Justice perspective. Anonymise where necessary, of course (Mr Costeja, for example), but generalised presumptive anonymity is inimical to the transparency required of a justice system. The CJEU is mis-striking the balance of rights.

Also, if this has to happen, why adopt the broken system of English Family courts of using only 1 or 2 initials as pseudonyms, which guarantees repetitiveuse of same initials in other cases & so parenthetical descriptions of the case in the title of the case are needed.

The CJEU’s own example is “MB (change of gender & retirement pension”. Or you could call it “MBQ” & lose the parentheticals. Two initials gives 650 permutations, three initials = 15,600 permutations. So you avoid the FamDiv problem of 12 authorities all called “Re B (a child)”.

Three initials is still obviously no better from an open justice perspective, but just for the sake of lawyers, judges & students, talking about “PJS”, “PNM”, “YXB”, “AMM”, “BUQ” allows for quick identification & memorisation, which is *really useful & important* at oral hearings.’

He also deprecates the practice by legal publishers (including ICLR we regret to admit) of reducing multiple initials to a single, presumed ‘surname’ initial in purported accordance with the longstanding practice of not including first names of natural persons in case titles.

Legal Profession

Bar Council promotes opportunity…

… and aims to stamp out bullying

The Bar Council announced that it is ‘time to get tough on harassment and bullying’ when publishing, last week, its new report: Barristers’ Working Lives 2017: Harassment and bullying report,  The chair of the Bar, Andrew Walker QC said:

“Over the last 12 months a spotlight has been shone on harassment and abuse of power, not just through international campaigns such as #MeToo, but also through those specific to our own profession, such asBehind the Gown- a campaign launched recently by barristers committed to tackling harassment at the Bar.

“The findings in this report explore the prevalence and nature of reports of bullying, harassment and discrimination in the profession. The results are a cause for concern and cannot be ignored.  As a profession, we must do much better. We do not and will not tolerate harassment and bullying at the Bar.

Read the full report here.

See the Bar Council’s Work Programme on harassment, bullying and discrimination.

Book news

Secret Barrister interviewed

Without breaking cover, anonymous author the Secret Barrister, whose book has taken up a tenancy in the Sunday Times top 10 nonfiction chart for the last quarter (13 weeks), has engaged in a number of interviews recently, including the following:

  • Zoe Saunders in a guest post on Lucy Reed’s Pink Tape blog: Zoe’s cross examination of the secret barrister…  (This follow’s Saunders’ review of Secret Barrister’s book in an earlier guest post: The Secret Barrister Stories of the Law and How It’s Broken – a family barrister’s perspective.
  • A Special Edition of the Monday Message from the Criminal Bar Association in which SB answers questions relevant to practice at the criminal bar.
  • A lunch (in person) with the legal correspondent of the Financial Times, at an Icelandic burger joint not far from Baker Street (a locale more closely associated with Sherlock Holmes than Marshall Hall), reported under the slightly misleading headline: The Secret Barrister blows the whistle on Britain’s judiciary (Misleading because the attack is really on the criminal justice system as a whole, and its chronic underfunding and gross neglect by successive governments and a run of spectacularly unhelpful Lord Chancellors… )

Other new books

In Your Defence: Stories of Life and Law, by Sarah Langford (Doubleday) was published on 28 June 2018. It is about life at the criminal bar and has been well received.

Another recent book of interest in this context is Guilty Until Proven Innocent, by Jon Robins (Biteback Publishing) which came out last month. Jon Robins is responsible for the excellent The Justice Gap website. This book is about miscarriages of justice and the difficulty of putting them right.

We hope to publish full reviews of all these books soon.

ICLR news

Platform development: case history

67 Bricks, the developers of our wonderful new platform, ICLR.3, have written up a case study of the development for MarkLogic, who are responsible for the underlying database technology.

The ICLR.3 platform was developed according to requirements which ICLR drafted and refined using all the knowledge and experience we had acquired from our previous platform and the feedback its users gave us. MarkLogic appeared to offer scope for huge flexibility in terms of further development of features and functions, and almost limitless expansion of content. With No Silos, and No SQL!

Since its launch last Autumn, we have continued to develop ICLR.3 and to add refinements to its functionality and lots more content. Our ultimate aim is to make ICLR.3 the first port of call for case law research, not just for case reports and summaries but also judgment transcripts, parallel citations, and third party commentary – including some of the excellent early commentary now provided by chambers and law firm blogs. (By way of example, see the index card for the recent ‘right to be forgotten’ case of NT 1 and NT 2 v Google LLC [2018] EWHC 799 (QB); [2018] WLR(D) 225.)

Looking ahead, we are currently planning to index the Session Cases from Scotland and the main law reports from Northern Ireland and from the Republic of Ireland, as well as cases from senior courts in other major common law jurisdictions around the world. In time, we will not just be indexing and linking to such cases (thus expanding the range of our search) but also ingesting content. Thanks to MarkLogic and 67 Bricks, the common law world is our oyster.

Download the case study.

Law (and injustice) from around the world

America

Another bloody shooting

Five journalists at the Capital Gazette newspaper in Annapolis, Maryland were shot dead by an intruder who has been identified as Jarrod Ramos, a man who apparently harboured a grudge against the paper and had previously issued threats. He is said to have used a pump-action shotgun purchased legally a year or so ago. According to NPR, ‘In Maryland, shotgun sales are not regulated by state law’. The President, as he has repeatedly done in the many mass shootings which have occurred during his presidency, offered his ‘thoughts and prayers’ in a hurried tweet.

The NRA, which promotes gun ownership, has yet to comment on the tragedy, but one of its spokespersons is reported to have made earlier comments encouraging violence against journalists: Maryland shooting: NRA spokeswoman Dana Loesch said journalists ‘need to be curb-stomped’, in resurfaced footage (Independent.) It is not suggested that the gunman was inspired or encouraged by her remarks to act as he did, but they don’t reflect well on the National Rifle Association.

One of the Capital Gazette’s reporters, courts/crime correspondent Phil Davis, managed to tweet shortly after the worst of the attack… 

… and the newspaper was published next day as usual, reporting the attack on its front page.

Australia

Defamation claim based on Google search results can proceed

The High Court of Australia has held that a litigant can claim against Google that autocomplete wording and combinations of images produced in response to a search are capable of being defamatory: Trkulja v Google LLC [2018] HCA 25 (13 June 2018)  

The court allowed an appeal by the plaintiff, Milorad Trkulja, reversed the decision of the Victorian Court of Appeal (2016) 342 ALR 504 and restored that of McDonald J in the Supreme Court of Victoria [2015] VSC 635, allowing him to pursue a defamation claim against Google LLC based on search results which appear to link him to key underworld crime figures.

The claim is based on the fact that an image of the plaintiff was displayed, ‘mixed with’ a specified number of ‘convicted Melbourne underworld criminals in response to a search term such as ‘Melbourne criminal’ entered by the searcher. At issue are the questions whether the search engine provider ‘publishes’ those results for the purposes of defamation law, and whether, in the particular instance, the results produced in the present matter were capable of being defamatory of the plaintiff. The Court of Appeal thought not, and struck out the claim. The High Court disagreed. It said it was still for the plaintiff to prove his case, but it was not an impossible one to prove. So the case now goes back to the first instance court for a substantive hearing.

It opens (or further opens) the possibility of Google and other search engines being held to be ‘publishers’ of results, particularly where their attention is drawn to something which they then fail to remove, thus depriving them of the standard argument that the publication was purely automatic and unconscious on their part.

The litigation has been rumbling on for some time: see, via Inforrm’s blog, Case Law, Australia, Trkulja v Google LLC, The return of Trkulja, Episode IV – Justin Castelan

There’s also a discussion of the case in The Law Report radio programme from ABC RN (also available as a podcast) broadcast on 19 June 2018: High Court rules on Google defamation case and Rebel Wilson damages payout slashed (We mentioned the Rebel Wilson case here last week).

Germany

Murderers had no right to be forgotten

The European Court of Human Rights in M.L. and W.W. v. Germany (application nos. 60798/10 and 65599/10) held unanimously that the refusal by the Federal Court of Justice to issue an injunction prohibiting three different media from continuing to allow Internet users access to documentation concerning the applicants’ conviction for the murder of a famous actor and mentioning their names in full did not constitute a violation of their right to respect for private life under article 8 of the Human Rights Convention.

The facts, taken from the press release, were as follows:

‘The applicants, M.L. and W.W., who are half-brothers, are German nationals who were born in 1953 and 1954 and live in Munich and Erding (Germany) respectively. In May 1993 M.L. and W.W. were convicted of murdering a very popular actor, W.S., and sentenced to life imprisonment by the domestic courts. They were released on probation in August 2007 and January 2008 respectively.

In 2007 the applicants brought proceedings against the radio station Deutschlandradio in the Hamburg Regional Court, requesting anonymity of the personal data in the documentation on them which had appeared on the station’s Internet site.

In two judgments of 29 February 2008 the Hamburg Regional Court granted the applicants’ requests, considering in particular that their interest in no longer being confronted with their past actions so long after their conviction prevailed over the public interest in being informed. The Court of Appeal upheld those judgments. The Federal Court of Justice quashed the decisions on the grounds that the Court of Appeal had not taken sufficient account of the radio station’s right to freedom of expression and, with regard to its mission, the public’s interest in being informed. In July 2010 the Federal Constitutional Court decided not to entertain constitutional appeals lodged by the applicants.

A second and third set of proceedings on similar grounds brought against the weekly magazine Der Spiegel and the daily newspaper Mannheimer Morgen respectively were dealt with under the same procedure and ended with the same conclusions by the courts.’

The judgment is available only in French, but a convenient summary (from which the above background is taken) can be downloaded from here.

And finally…  Tweet of the Week

is from Isobel Williams and her wonderful blog, Drawing from an Uncomfortable Position, on a symposium of women lawyers at Westminster:

 

That’s it for this week. Thanks for reading, and thanks for the many tweets of encouragement. We can’t cover everything but we aim to provide a goodly selection of choice morsels each time, as much for diversion, as for information and instruction.

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.