This week’s roundup of legal news and commentary includes criminal dishonesty, police investigations, historic victories in the courts, historic counsel remembered and an extremely historic statute. Plus news good and bad from foreign lands.
Dishonesty – what remains of second limb in Ghosh test?
A recent Twitter thread prompted a discussion on the effect of the Supreme Court’s decision in Ivey v Genting Casinos (UK) Ltd  UKSC 67;  3 WLR 1212 (a case about “cheating” at cards and whether it needed to involve conscious dishonesty) on the second limb of the test of criminal dishonesty laid down by the Court of Appeal in R v Ghosh  QB 1053.
The two-stage Ghosh test involved asking first whether the conduct of the defendant was dishonest by objective standards (ie regardless of what they thought themselves); and then, secondly, whether the defendant appreciated that the conduct was, by those standards, dishonest (a subjective test).
We discussed Ivey in Weekly Notes — 30 October 2017. The Supremes effectively said that, if and to the extent that the second limb of the Ghosh test could be said to apply, then it was wrong; but as their decision on cheating did not require proof of dishonesty, the definition of dishonesty (in Ghosh or otherwise) was not critical to their decision.
Nevertheless, they dissed it pretty comprehensively. They said the test for dishonesty should be the same in criminal cases involving dishonesty as it was in civil law. So the question is, has that second limb of Ghosh been overruled? (The headnote in the Weekly Law Reports says it was “disapproved” which is not quite the same thing: it means the Supreme didn’t like it, but as it didn’t stand in the way of their decision, they didn’t need to actually kick it over.)
An answer of sorts has now been provided by a strong bench of the Queen’s Bench Divisional Court (Sir Brian Leveson, President of the Queen’s Bench Division and McGowan J) in Director of Public Prosecutions v Patterson  EWHC 2820 (Admin). This was a case of theft, which involves proof of dishonesty (under s 1(1) of the Theft Act 1968), so the test in Ghosh was relevant.
Sir Brian Leveson P, having quoted the judgment of the Supreme Court in Ivey’s case, said at para 16:
These observations were clearly obiter, and as a matter of strict precedent the court is bound by Ghosh, although the Court of Appeal could depart from that decision without the matter returning to the Supreme Court. […]
Given the terms of the unanimous observations of the Supreme Court expressed by Lord Hughes, who does not shy from asserting that Ghosh does not correctly represent the law, it is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future.”
In this case, the magistrates had wrongly concluded that there was no case to answer against the defendant, so the case was remitted to a fresh bench for rehearing. It was unnecessary to say more. But the decision is a strong indication as to how the courts should approach the matter in future, notwithstanding the technically obiter status of the Supreme Court’s disapproval.
We are grateful to (the appropriately named) Obiter J for flagging this up in a case comment on his Law and Lawyers blog.
Historic sexual offences investigations
There’s a podcast trail you can follow to give some insight into the reason for growing scepticism about the wisdom of spending large amounts of public money investigating the possibility that someone who is now dead might, a long time ago, have committed sexual offences against people now coming forward and claiming to be victims.
Begin with last week’s Law in Action, from the BBC, in which Joshua Rozenberg speaks to retired judge, Sir Richard Henriques, who conducted an inquiry into Operation Midland (the Metropolitan Police’s investigation into an alleged Westminster paedophile ring) and discusses Operation Conifer (Wiltshire Police’s investigation into allegations against deceased former Prime Minister, Ted Heath). Sir Richard is disappointed that the police have not as yet accepted his recommendation that complainants alleging historic sexual offences against them should not be described from the outset as “victims”, as they currently are [apparently following a direction by Sir Keir Starmer when he was Director of Public Prosecutions].
Then head over to Private Eye News for their “Plodcast” about their own experience of being asked to help with Operation Conifer – somewhat speculatively prompted by ancient cartoons and images of Ted Heath in the magazine in the 1970s. They also relate how they successfully resisted (and were awarded costs of) a somewhat preposterous (and also speculative) application in Cambridge Crown Court by Hertfordshire police to force them to divulge their subscriber lists to help solve an internal police disciplinary inquiry. (see also UK Press Gazette story on this.)
Finally, on the topic of historic abuse allegations, go back to the BBC for a rather interesting series of The Essay on how memory works, in one episode of which Chris French, Professor of Psychology at Goldsmiths, discusses the phenomenon of “false memory syndrome” – something that has plagued historic allegation inquiries for decades. See also his 2009 article in the Guardian, Families are still living the nightmare of false memories of sexual abuse
As the first two podcasts make clear, many of the allegations in the police investigations turned out to be false, and most were too unreliable to pursue. In the end, with barely a handful of apparently coherent complaints by alleged victims, the police were reduced to announcing, triumphantly, that if Ted Heath had still be alive, they would have had some questions to ask him under caution. Bonfire night was a while ago, but for damp squibs this certainly takes some beating.
Triumphant return of wine-barred women
On 15 November, 35 years after the decision of the Court of Appeal in Gill v El Vino Co Ltd  QB 425 on 8 November 1982, the women concerned and their supporters made a triumphant return to the wine bar, El Vino’s in Fleet Street, whose policy of not allowing women to stand and drink at the bar had been held to constitute discrimination by way of less favourable treatment in the provision of goods, facilities or services, contrary to sections 1 and 29 of the Sex Discrimination Act 1975.
We rather like the way the event was advertised by “noting up” the flyer with the relevant case citation from the Law Reports.
Shall we go & celebrate or is it profiteering from historic sexism? My chambers was *ahem* upholding the cab rank rule😉Well before my time😂 pic.twitter.com/SK4syVDK5X
— Harini Iyengar (@Harini_Iyengar) November 7, 2017
The occasion seems to have been rather splendid, with El Vino’s new manager adopting a much more hospitable attitude, as recorded in a lovely write-up by Catherine Baksi, aka Legal Hackette, on her blog: Banning women from bar ‘regrettable’ says manager of infamous Fleet Street watering hole
The Magna Carta Cake
On 14 November Unison and Matrix chambers held a celebration event at Unison’s headquarters near Euston Station in London, to mark the union’s victory in its long battle against the imposition of employment tribunal fees. With the judgment of the Supreme Court in R (Unison) v Lord Chancellor  UKSC 51;  3 WLR 409;  ICR 1037, not only were the fees which no fewer than four different Lord Chancellors had sought to defend been held to have been a fundamental breach of the constitutional right of access to justice, but also the speech of Lord Reed JSC provided a ringing and triumphant defence of the rule of law itself. The Supreme Court reversed the decisions of a single judge, the Divisional Court, and the Court of Appeal, all of whom had upheld the fees order which the Supreme Court ultimately struck down.
— Sean Jones (@seanjonesqc) November 15, 2017
To celebrate this victory, Matrix provided a magnificent cake decorated with a quotation of the key clause from Magna Carta: “We will sell to no man, we will not deny or defer to any man either Justice or Right”. Magna Cakea, as some wags began to call it, was cut with evidence rejoicing by, from left to right, Shantha David, UNISON legal officer; Maureen Le Marinel, UNISON NEC; Dave Prentis, UNISON Gen Sec; Karon Monaghan QC; Adam Creme, UNISON Head of Legal, Bronwyn McKenna, UNISON AGS.
Among the speeches was an interesting discussion of the claimants’ legal tactics by Karon Monaghan QC of Matrix Chambers, who appeared for UNISON all the way through, along with Matthew Purchase, also from Matrix, plus two barristers from Blackstone Chambers, Dinah Rose QC and Iain Steele, who were brought in for the final battle in the Supreme Court.
Monaghan recalled how the High Court had said the case was “unarguable” and when asked to stay the Lord Chancellor’s fees order pending judicial review of its legality, refused – on an undertaking that the government would repay all the fees paid under it if UNISON eventually won. (That didn’t go so well for them, in the end.) She said the lower court judges were somewhat contemptuous of the claims, but the higher up the court system they went, the less conservative the judges seemed to be. She had advised them to pursue the matter as a union and not involve individual sample claimants who might be subjected to intolerable scrutiny (eg over decisions to spend money on cigarettes and other self indulgences instead of saving up for exorbitant court fees). The success of the case had been a team effort on the part of all the lawyers involved, she said, and the result had been one of the most constitutionally important cases of her generation. The rule of law was more important than the government. It was an important case in regard to access to justice, but also for those whose voices would not otherwise be heard.
England’s oldest statute?
At 750 years old, issued on 19 November 1267, the Statute of Marlborough is one of the oldest pieces of legislation in England still in force today. Only four of its twenty-nine sections are still in force. And according to the British Library, it almost didn’t make it. In 2014, the Law Commission made plans to scrap it altogether. The surviving sections are now known as the Distress Act and the Waste Act. The Distress Act states that anyone seeking reimbursement for damages must do so through the courts, while the Waste Act ensures that the tenants do not lay waste, sell or ruin their lands and other resources without special permission.
— Andrew Dunning (@anjdunning) November 19, 2017
Is it older than Magna Carta (see cake, supra)? Although the original sealing of MC was in 1215 (its 800th anniversary celebrations two years ago coincided with tumultuous demonstrations against the then Lord Chancellor, Chris Grayling, over cuts to legal aid), the version of MC that is now still in force dates from the back end of the 13th century, while the Statute of Marlborough is older. But earlier this month was the 800th anniversary of the Forest Charter, known as MC’s little sibling.
No – not ICLR. This is about the media, PLE and legal bloggers
The Secret Barrister blogger, whose book is out next year, has issued a tirade bemoaning the standard of public legal education and tabloid law reporting, and submit that the public should be outraged by the justice system — but not for the reasons they think. You can read it on Legal Cheek.
Lawyers are partly to blame, for their exclusive rituals and language;
But part of the problem is broader: the refusal of successive governments to provide any meaningful legal education in schools; irresponsible and inaccurate news reporting; and legal illiteracy indulged and expounded by politicians using the law as a cheap crop to beat their hobby horse of choice.
That is about crime reporting and (mis)understanding by the public. The same is true, unsurprisingly, about family law, despite the best efforts of the Transparency Project to correct public misunderstandings and misreportings in the media. Should responsible legal bloggers, like those of us who contribute to TP’s case comments and legal explainers, not be given the same access as accredited media representatives when it comes to covering cases like the notorious Muslim foster carer case (which the established media made such a mess of) – asks Lucy Reed in a recent post on their site, now reposted on Inforrm’s blog, Legal bloggers reporting the family courts: a level playing field? She proposes a modest amendment of the Family Procedure Rules (FPR) 27.11(2) and 27.11(8)–(10) to accommodate this.
Finally, on the subject of legal blogging and correcting mis-reportings, hats off to Matthew Scott, the Barristerblogger, who after his post (which we noted last week) on The legalised lynching of Lillith the lynx has now issued a futher post, The deaths of the Aberystwyth lynxes: a reappraisal and an apology, in which he admits he was wrong, or at any rate too hasty, in his initial take on the story about the killing of a lynx escaped from a private zoo. It is brave of him to admit his mistake and put it right. One can think of newspaper columnists who, to their shame, pretend not to notice when their errors are pointed out, and whose publishers have to issue mealy-mouthed corrections in tiny type at the bottom of a different page to comply with their regulatory obligation (under clause 1 of the Editors’ Code of Conduct) of accuracy.
Lord Hutchinson of Lullington
Jeremy Hutchinson QC, later Lord Hutchinson of Lullington, has died aged 102. The famous criminal barrister, urbane, witty, and above all winning, who appeared in many of the major cases of the Permissive Age in the 1960s and 70s, was the subject of a recent book, Jeremy Hutchinson’s Case Histories, by Thomas Grant, which we reviewed here.
An excellent obituary by another famous barrister, Geoffrey Robertson QC, appeared in The Guardian
Law (and injustice) from around the world
Equal marriage vote
Despite a vigorous and at times unpleasant campaign by the forces of conservatism, Australians have overwhelmingly voted in favour of legalising same-sex marriage in a historic poll, the BBC reported last Wednesday. The Australian Bureau of Statistics recorded that 61.6% of people taking part in a postal vote favoured allowing same-sex couples to wed. The Guardian noted that
With a turnout of 79.5% the result in the voluntary survey is considered a highly credible reflection of Australian opinion and gives marriage equality advocates enormous momentum to achieve the historic social reform.
The prime minister, Malcolm Turnbull, said:
“They voted yes for fairness, yes for commitment, yes for love. And now it is up to us here in the parliament of Australia to get on with it, to get on with the job the Australian people asked us to do and get this done,” he said, stressing the law should change before Christmas.
This tweet puts it nicely:
— (((Spooky Snigdha, Queen of Sheba))) (@snigskitchen) November 15, 2017
Campaign to free Nazanin Zaghari-Ratcliffe
Following a week of dangerous bungling by cabinet ministers over her purpose for a visit to Iran during which she was arrested and charged with “plotting to overthrow Iran’s clerical establishment” (see Reuters, British ministers rally around Foreign Secretary Johnson over Iran) when all she was doing was visiting her parents on holiday, Nazanin Zaghari-Ratcliffe is now the focus of a campaign by Amnesty International to Bring Nazanin Home.
It was remarks by Boris Johnson, when giving evidence to a parliamentary committee, that she had been “teaching people journalism” before her arrest in April 2016 – that appear to have prompted the jumpy and insecure Iranian regime to extend the sentence already imposed on Nazanin. Yet some days later, after all this had been aired and it had been clarified that she had only been in Iran to visit her parents, another minister, Michael Gove, said in a BBC interview that he “did not know” the purpose of her visit, which added fool to the fire, while doing nothing to let Johnson off the hook, though it may have spread culpability for the blunder a bit more widely in our cartoon cabinet. Johnson has since retracted his comments and agreed to speak to Nazanin’s husband and make slightly better efforts to find a solution. It is, of course, right that the real villains of this piece are the Iranians who have locked up a British citizen on trumped up charges at a time when Britain is trying to help them retain the benefit of a nuclear deal which the President of the USA would prefer to sweep angrily off the table.
Amnesty report that
Nazanin has now been told she faces a new round of charges. Her future has once again been plunged into chaotic uncertainty – her family say she could face years more in prison. Nazanin’s health is declining, according to her husband. She suffers from severe arm, neck and back pain as a result of her prison conditions, and her hair is falling out. Last November, Nazanin wrote a suicidal letter to her family. A year has passed and her mental health has continued to decline.
You can support the Amnesty petition here.
Constitutional crisis as Mugabe refuses to go
After the army in Zimbabwe staged what it denied was a coup a week ago, putting the president, Robert Mugabe, under house arrest and restoring his deputy, Emmerson Mnangagwa, who had been sacked to make way for Mugabe’s wife Grace to take over; and after Zanu PF, the ruling party, sacked Mugabe as its leader, the disgraced (as it were) president has declined the invitation to resign, leading to the probability of impeachment proceedings.
There’s reportedly an “eerie calm” in the capital, Harare, which is often journalistic shorthand for the calm before the storm. But what’s strange about this non-coup is that it seems to be carefully calculated to respect international and (perhaps more relevantly) pan-African opinion, while also recognising Mugabe’s historic reputation as a liberator, although his more recent dictatorial conduct has called for condemnation. All in all, says Jason Burke in the Guardian, Zimbabwe’s strange crisis is a very modern kind of coup
We await developments.
Tweet of the week
is no joke this time. It’s from MP Anna Soubry, drawing attention to the ludicrous aggression of the pro-Brexit media, responding to a vote in parliament opposing a measure which is either futile or would simply limit parliamentary sovereignty:
— Anna Soubry MP (@Anna_Soubry) November 14, 2017
Unsettled times. But there we must leave it for this week. More next time. Thanks for following and for all the links and suggestions on Twitter.
This post was written by Paul Magrath, ICLR blog editor, and does not necessarily represent the views of ICLR as an organisation.