Weekly Notes: legal news from ICLR, 2 October 2023
We welcome you back at the start of another legal year with a rapid roundup of legal news and commentary over the long vacation.… Continue reading
A transparent view from the judicial corridor? Photo from Judiciary website.
Lady Chief Justice
Dame Sue Carr sworn in
Lord Burnett of Maldon has now retired as Lord Chief Justice and been succeeded by Dame Sue Carr, who is being sworn in as Lady Chief Justice today, 2 October 2023. Her swearing in, before the great and good of the law, was livestreamed via the Court of Appeal, Court 4 YouTube channel.
As Joshua Rozenberg explains in Carr arrives today, she is the first lady chief justice in the history of England and Wales.
She inherits all the same problems as her predecessor faced when he was appointed, in 2017, including crumbling courts, inadequate staff, legal professions struggling with low morale and legal aid rates, a court modernisation programme running over cost and behind schedule, and increasing threats from politicians against the rule of law and adherence to international legal conventions. She will need to work with the current Lord Chancellor, Alex Chalk KC MP, and whoever succeeds him after the general election, if there is a change of government (which looks likely), some time over the next year or so.
Speech by LCJ
One of Lord Burnett’s last acts as outgoing Lord Chief Justice was to give a speech on Open Justice Today, at the Commonwealth Judges and Magistrates Conference on 10 September 2023.
It is a very good speech. It sets out the history of open justice (dating back to ancient times), its nature and the rationales underpinning it, and how it has changed with the benefit of technology in recent years. But it is perhaps a little too rosy in its view of how well we are doing with open justice in the courts of England & Wales in the current day, as discussed in this post (also on the Courts and Tribunals Observers’ Network): Open Justice Today — Speech By The Lord Chief Justice.
Lord Burnett may have been prompted to speak on the subject of open justice in response to the Ministry of Justice’s consultation on the subject, Open Justice: The Way Forward.
Launched in May, this sought the views from the public and various stakeholders of a long list of questions about what open justice means, and how it might be improved in areas such as listing, access to documents, etc. The consultation closed on 7 September. ICLR was one of the stakeholders who responded: we have now published our response.
Other responses by court observers and commentators have been collected and published by the Courts and Tribunals Observers’ Network.
Publication of judgments
An aspect of open justice and transparency is the publication of judgments, which help the public to understand how courts have reached their decisions, as well as promoting the development of the common law. The National Archives (TNA) launched its Find Case Law database in mid-April 2022, under a new judgment publication system mandated by the Ministry of Justice. ICLR systematically monitored the publication of listed judgments under this new system over its first twelve months of operation. Our report on its performance combines statistics for the efficiency and coverage of cases listed for judgment in the Daily Cause List with other publication data, and monitors the relationship between the listing and publication of judgments as part of the overall judgments data ecosystem and its importance to Open Justice.
An interim report (covering the first three months of the new system) was published in January 2023. In September we published our final report, Publication of listed judgments: towards a new benchmark of digital open justice
A key finding is that around a fifth of the judgments listed in the Daily Cause List are not ending up being published on Find Case Law, mainly because the courts and judiciary, for various reasons, are not sending them there as intended.
- Michael Cross, Law Society Gazette: One fifth of judgments missing from national database
- Nick Hilborne, Legal Futures: High Court judges “failing to send judgments for publication”
According to statistics published by the Ministry of Justice, the prison population of England and Wales stood at 87,793 at the end of last month, an increase of almost 8% on the figure of 81,309 twelve months ago. Yet still the clamour for tougher sentencing continues.
Other punishments are available, especially for lower level crimes. The MoJ has also announced that offenders will “help turn the tide against beach litter” by being made to “clean-up Britain’s coastline”. Plastic and litter will be removed by offenders wearing high-visibility jackets emblazoned with “Community Payback” on beaches up-and-down the country, as part of the Marine Conservation Society’s annual Great British Beach Clean.
Plastic litter is not, sadly, the only pollution to afflict Britain’s beaches. Last month the campaign group Surfers Against Sewage launched The End Sewage Pollution Manifesto:
“Created by water lovers and users united by an ambition to End Sewage Pollution, the 5 Point Plan sets out what government must do for rivers and the ocean to thrive. We have collaborated with regional ocean activists and grass root community groups. As well as national environmental campaign groups like the Rivers Trust and the Angling Trust and governing bodies like Swim England and British Canoeing. The result is a set of asks that will deliver for everybody who uses the water and for nature itself.”
For more information about sewage pollution, see this House of Lords library briefing, Sewage pollution in England’s waters.
Despite the general principle that the polluter pays, the response so far has been to suggest that the water companies who are illegally discharging sewage into fresh and sea waters should be allowed to charge their customers even more to fund improvements in the processing systems.
If only the illegal dumpers of sewage could be given community payback sentences, and made to clean up the mess themselves.
Post Office Horizon IT inquiry
The carnival of catastrophe that was visited upon hundreds of sub postmasters by reason of the glitchy Horizon computer accounting system continues to shock and dismay at the inquiry into Britain’s most extensive miscarriage of justice. Some of the evidence has been quite breathtaking.
Last month it was the turn of Helen Rose, a Post Office auditor and investigator who had, apparently, no formal auditing qualifications or training, no training she can recall on the Post Office Horizon IT system and no formal training in investigation, according to the account of her evidence on Nick Wallis’s Post Office Scandal blog: Post Office auditor signed Court statement containing info she knew was false.
See also: John Hyde, Law Society Gazette, Post Office witness statement left out ‘unhelpful’ details, inquiry hears
Commenting more generally on the unchallenged evidence relied on in these cases, despite the fact that it derived from a computer system known to be faulty, see David Allen Green, Law & Policy blog: “Computer says guilty” — an introduction to the evidential presumption that computers are operating correctly
Following the conviction of neonatal nurse Lucy Letby for the murder of seven babies and seven counts of attempted murder relating to six other babies, the government ordered a public inquiry into the circumstances in which she was able to commit those offences while working at the Countess of Chester hospital. As Obiter J reports on the Law and Lawyers blog, Letby was sentenced to a Whole Life Term.
The inquiry will now be a statutory one, giving the appointed chair, Dame Kate Thirlwall legal powers to compel witnesses to attend and provide evidence in public, unless the chair decides otherwise. According to Joshua Rozenberg, Thirlwall is the ideal choice, given her previous experience, including having chaired a previous major hospital inquiry.
There will also be an independent inquiry into the circumstances and handling of Andy Malkinson’s case, after his conviction was finally quashed by the Court of Appeal in July, for which he spent over 17 years in prison, in view of new DNA evidence implicating another suspect: see R v Malkinson (Andrew)  EWCA Crim 954, CA.
The inquiry will investigate the handling and the role of Greater Manchester Police, the Crown Prosecution Service and the Criminal Cases Review Commission in his conviction and subsequent appeals to ensure lessons are learned from the significant miscarriage of justice he has suffered.
The Criminal Cases Review Commission (CCRC), which twice declined Malkinson’s applications before referring a third application to the Court of Appeal in January 2023, has also commissioned a review into its investigations, to be conducted by Chris Henley KC, who is Head of Mountford Chambers and a former chair of the Criminal Bar Association. The CCRC has published its Terms of Reference.
Online Safety Bill
This controversial and much commented on Bill has been passed by Parliament and is awaiting the royal assent. The legislation will introduce a new regulatory regime for online platforms and search engines accessible from the UK, with serious consequences for non-compliance. For more on this, see:
- Inforrm’s blog: The Online Safety Bill is set to become law — Rupert Cowper-Coles , Nadia Tymkiw and Jessica Kingsbury
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CHILDREN — Evidence — Witnesses: In re D (A Child), 14 Sep 2023  EWCA Civ 1047;  WLR(D) 385, CA
CONFLICT OF LAWS — Foreign judgment — Recognition: Charles Taylor Adjusting Ltd v Starlight Shipping Co, 07 Sep 2023 (Case C-590/21); EU:C:2023:633;  4 WLR 68;  WLR(D) 384, ECJ
CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Contract: NM v Club La Costa (UK) plc, 14 Sep 2023 (Case C-821/21); EU:C:2023:672;  WLR(D) 392, ECJ
CRIME — Jurisdiction — Preparatory hearing: R v BHQ, 08 Sep 2023  EWCA Crim 1018;  WLR(D) 387, CA
INDUSTRIAL RELATIONS — Employment tribunal — Amendment of claim: MacFarlane v Comr of Police of the Metropolis, 12 Sep 2023  EAT 111;  WLR(D) 380, EAT
INSURANCE — Liability insurance — Compensation scheme liability: R (Manchikalapati) v Financial Services Compensation Scheme, 05 Sep 2023  EWCA Civ 1006;  WLR(D) 372, CA
MARRIAGE — Divorce — Financial proceedings: Simon v Simon, 15 Sep 2023  EWCA Civ 1048;  WLR(D) 386, CA
MARRIAGE — Divorce — Rescission of decree nisi: Cazalet v Abu-Zalaf, 22 Sep 2023  EWCA Civ 1065;  WLR(D) 395, CA
PLANNING — Planning permission — Conditions: R (Fiske) v Test Valley Borough Council, 06 Sep 2023  EWHC 2221 (Admin);  WLR(D) 383, KBD
ROAD TRAFFIC — Causing death by careless driving whilst under the influence of drink and drugs in excess of prescribed limits — Sentence: R v Roberts (Keilan), 08 Sep 2023  EWCA Crim 1023;  WLR(D) 388, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Local Government Lawyer: Forced marriage and the inherent jurisdiction: In re SA  EWCA Civ 1003;  WLR(D) 368, CA
Out-Law: Privy Council provides update on setting aside judgments and settlements for fraud: Winston Finzi v Jamaican Redevelopment Foundation Inc and others (Jamaica)  UKPC 29, PC
Mental Capacity Law and Policy: Brain stem death, an explainer of the law in England & Wales, and a question of consent: St George’s University Hospitals NHS Foundation Trust v Casey  EWHC 2244 (Fam), Fam D
RPC Perspectives: Tribunal allows taxpayer’s appeal as although he had failed to establish his domicile of choice HMRC had failed to prove there had been a loss of tax due to his carelessness: Ian Charles Strachan v The Commissioners for His Majesty’s Revenue and Customs  UKFTT 617 (TC), FTT
Legal Futures: Insolvent insurer’s policyholders fail in claim over unpaid legal costs: R (Manchikalapati) v Financial Services Compensation Scheme  EWCA Civ 1006;  WLR(D) 372, CA
QMLR: High Court Finds Long Waiting Times for Trans Healthcare are Lawful: R (AA) v National Health Service Commissioning Board  EWHC 43 (Admin);  PTSR 608;  WLR(D) 34, KBD
Gatehouse Chambers: Where now for litigation funding? R (PACCAR Inc) v Competition Appeal Tribunal  UKSC 28;  1 WLR 2594, SC(E)
Law Society Gazette: One-hour oral judgment in family case ‘plainly irregular’: Re T & Ors (Children) (Adequacy of Reasons)  EWCA Civ 757, CA
Transparency Project: When should care orders be made for children living at home? New Court of Appeal guidance: In re JW (Child at Home under Care Order)  EWCA Civ 944;  WLR(D) 350, CA
Law & Religion UK: Employment status of Church of England curates: Green v Lichfield DBF: Reverend D Green v Lichfield Diocesan Board of Finance  UKET 2409635/2022, ET
4KBW: Supreme Court spells out the limitations of nuisance: Jalla v Shell International Trading and Shipping Co Ltd  UKSC 16;  2 WLR 1085;  3 All ER 701, SC(E)
Henderson chambers: Court of Appeal hands down judgment in the Trucks Collective Proceedings: Conflicts of Interest, Rival CPO Applications, and Jurisdiction to Appeal: UK Trucks Claim Ltd v Stellantis NV  EWCA Civ 875, CA
Verfassungsblog: How a Boat Trip to Estonia Challenged the Foundations of the Finnish Sentencing System: Criminal proceedings against A (Syyttäjä intervening) (Case C-35/20); EU:C:2021:813, ECJ
Inforrm’s Blog: Sanchez v France: Are the Expanded Liability Rules Foreseeable for Social Media Users: Sanchez (Julien) v France (Appn no. 45581/15); CE:ECHR:2023:0515JUD004558115;  ECHR 418, ECtHR
Free Movement: Asylum seekers don’t need ‘direct evidence’ they’re being covertly monitored: WAS (Pakistan) v Secretary of State for the Home Department  EWCA Civ 894, CA
Blackstone Chambers: Umbrella Interchange Fee Proceedings: Merricks v Mastercard Inc  CAT 49, CAT
There have been too many comments added over the long vacation to flag them all up here, but we’ll be adding some over the next few weeks.
Tweet of the week
Is from Strictly Obiter, concerning the paths of ratio decidendi.
Judge made the orders I wanted, despite me quoting Lord Diplock ("that is the beauty of the common law – it is a maze not a motorway") in oral submissions.
— Strictly Obiter (@StrictlyObiter) September 27, 2023
That’s it for now. Thanks for all your tweets and toots and threads. Enjoy the new term.
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.