This week’s roundup of legal news and comment includes legal aid and the rule of law, parole board transparency revisited, a court reporting crisis, and a divinely inspired judicial intervention in the jury room.

Legal Aid

Cash for courts not cases, says Gauke

The new Lord Chancellor and Secretary of State for Justice, David Gauke, has publicly stated that he does not believe more money should be provided for legal aid, taking the view that modernising the courts is the way to improve access to justice. He also said he expected a long-promised review of the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) to be published in the summer, according to an interview in The Times (£)

“I want to see where the review takes us. My point is simply that when it comes to access to justice, there are a number of factors and they need to be looked at in the round. […] As chief secretary to the Treasury I was always keen to ensure that the public sector … makes use of digital technology as effectively as possible to improve the service to the public, as well as ensuring that we can spend our resources as effectively as possible,” he said.

The inference must be that he thinks any public money available for access to justice would be better spent improving the courts (currently undergoing a massive £1bn upgrade and digitisation programme known as HMCTS Reform, which we have written about extensively on this blog) rather than used to fund individuals struggling with their current cases.

The problem is that HMCTS is spending the money faster than it can be taken away from closing down courts and underfunding cases. This is a problem with the ‘zero-sum game’ self-financing justice system model. Last week the Guardian reported that

The courts service spent £50m last year on agency and contract staff, a more than tenfold rise since 2010 when it spent less than £4m, while courts have been closing at an unprecedented rate. […]

Part of the increase appears to be linked to a £1bn court modernisation programme aimed at transferring more court hearings online or operating them through remote video-links. More than £30m is being spent on external management consultants including PwC.

See also: Transform Justice blog, Why is the courts service spending at least £30 million on management consultants?

Swearing in

Gauke (whose appointment we reported in the previous edition of Weekly Notes) was sworn in last Thursday, at a dressing-up ceremony in the Royal Courts of Justice. In his speech, he made all the right noises about defending the independence of the judiciary and respecting the rule of law. He went on:

This commitment also includes ensuring efficient and effective support for courts. I want people to have confidence in every part of their justice system.

But perhaps we now need to read every sentence as though it ends with the caveat ‘but not by providing more money for legal aid’. Bear that in mind when reading the rest of his speech, including this impressive peroration:

I will be determined in our work to create a justice system that is open to all, a justice system that everyone in the country can have confidence in, and one that lives up to the deep-rooted sense of justice and fairness the United Kingdom is known for around the world.

Unfortunately, when reporting the swearing in, the Daily Mail captions editor managed to get wrong the name of the Lord Chief Justice in the photo it published with a story from the Press Association, as featured in this tweet from PJM QC.

https://twitter.com/pjm1kbw/status/954275587786444800

The LCJ is correctly identified in the main story as Lord Burnett, but the caption has Lord Thomas of Cwmgiedd, who retired last year. Never mind, it’s probably not the worst example of the Mail’s inaccuracies in legal reporting.

 

In his swearing in speech, Gauke also mentioned (quite interestingly) that a previous Lord Chancellor from his home town of Ipswich had been Cardinal Wolsey. ‘Wolsey’s time as Lord Chancellor was made fraught through dealing with Henry the Eighth and his powers…’ Indeed, and he probably doesn’t just mean ministerial amendments to primary legislation. To learn more about the atmosphere of Thomas Wolsey’s time in office, read Hilary Mantel’s brilliant historical novel, Wolf Hall – or watch the BBC TV adaptation where he is played by Jonathan Pryce.

The featured image is from the entrance to Hampton Court Palace, originally built for Cardinal Wolsey, circa 1514.

 

Parole Board

Update on JR over Worboys case

Last week we reported on the huge polito-legal row that had broken out over the early release on licence of London ‘black cab rapist’ John Worboys. At the time the newly appointed Lord Chancellor, David Gauke, was saying he was considering mounting a claim for judicial review of the Parole Board’s decision. See also, in Lawyer 2B, After the Warboys case, should the Parole Board be more open about its decisions?

Since then, however, he has received legal advice suggesting such a claim would be unlikely to succeed. Rather than pursue a futile legal solution he has decided instead to concentrate on the existing plan (proposed by his predecessor David Lidington) for a consultation and review. So it’s jaw-jaw rather than law-law.

David 2, as we might call him, gave an oral statement in the House in which he said:

Let me set out my approach to Judicial Review in general. Whatever one’s personal feelings about a case, Ministers should not choose to bring a legal challenge that has no reasonable prospect of success. But it is right that public bodies can be held to account for their actions through due process of law – and, specifically, Judicial Review.

We have added the emphasis on that last sentence because it marks a significant departure from the general approach of other government ministers, including at least one of Gauke’s predecessors, to the prospect of judicial review of executive decision-making. It is really quite heartening. So the fact that he even considered it, and took advice, is good news for the rule of law. But the respect works both ways. It also means not abusing a legal proceeding for political ends.

No doubt some critics may feel this puts him firmly into the ‘enemy of the people’ zone. It doesn’t. His statement goes on to summarise the effect of the legal advice he has received – the decision was neither irrational nor procedurally flawed – but declines to expose the details of the advice. That may be because it would frustrate the existing veil of confidentiality over the decision of the board itself, which is constrained by rule 25 of the Parole Board Rules 2016.

To reassure the House and the public at large, Gauke goes on to explain that Worboys will not be released until victims have been consulted. And he is aware of, and appears to have no intention of obstructing, claims for judicial review being brought by some third parties, having been served correspondence as an ‘interested party’.

I fully support the right of victims to take their own legal advice and to challenge the decision. The approach I am taking does not mean that others, who may have significant interest in the case, are precluded from taking action.

One hopes that the veil of confidentiality over the decision is not something that would preclude someone with genuine standing to claim from having access to information necessary to pursue such a claim. Otherwise, the Rules themselves would have to be the subject of review.

In the meantime, Gauke has expanded the terms of reference of the review which his department has already planned.

In particular, I have expanded the review to include whether there should be a mechanism to allow parole decisions to be reconsidered and how that might be best achieved whilst retaining the independence of the decision making process.

The statement prompted further discussion and comments on Twitter.

https://twitter.com/pjm1kbw/status/954334587353731072

Court reporting

Is there a Crisis in our Courts?

That was the title of a seminar put on by the Society of Editors and hosted by the Daily Telegraph in its plush London office building on 18 January, where a gaudy sofa enjoys colourful news coverage. The seminar took the form of a panel debate with questions from the floor following short presentations by each of the panellists: Lord Judge, former Lord Chief Justice, John Whittingdale MP, formerly Secretary of State for Digital Culture Media and Sport, Ian Murray, Executive Director of the Society of Editors, Tristan Kirk, Courts Correspondent of the London Evening Standard, and Ed Owen, Head of Communications at HMCTS. The event was chaired by Ian MacGregor, President of the Society of Editors and Emeritus Editor of the Telegraph.

The seminar was advertised as a discussion about the dire state of court reporting in this country, but what really seemed to be up for discussion was how best to reinvigorate the declining local newspaper industry by funding better coverage of local courts and council meetings.

There was a good deal of nostalgic reflection on the old days when cub reporters cut their teeth on local papers and knew their way about the magistrates’ courts, and a good deal of pious hoping that the likes of Google and Facebook would step up to the plate and start funding the journalism their services exploited. But some concrete proposals did emerge, including plans for two working groups, engaging the talents of some of the many journalists, commentators, academics and publishers who attended.

You can read a full account of the seminar on the Transparency Project blog: Crisis in Our Courts – and How to Solve it

Legal Professions

2017/18 Eclipse Proclaim Modern Law Awards Winners

The awards were doled out at the Lancaster Hotel, London on 18 January 2018. The winners included,

  • For Barrister of the Year, Katie Gollop QC of Serjeants’ Inn Chambers, with a ‘highly commended’ mention for Nigel Jones QC, of Harwicke.
  • Serjeants’ Inn Chambers also win Chambers of the Year, with Outer Temple Chambers being highly commended.
  • Law Firm of the Year went to Osbornes Law, with gunnercooke being high commended.
  • Lawyer of the Year was Angela Jackman, of Simpson Millar LLP, with Melinda Giles, of Giles Wilson LLP being highly commended.
  • Outstanding achievement award went to Dinah Rose QC, of Blackstone Chambers & Shantha David, UNISON Legal Services.

Read the full list of winners.

 

Work for the Law Commission

The Law Commission is recruiting research assistants. The role is fixed-term for 51 weeks, with the possibility of renewal for a further year upon application.

They are looking for ‘exceptional candidates from all backgrounds, all of whom have a passion for law reform’. If successful, ‘you’ll master complex areas of law and help shape UK legal reform as part of an expert team. You will develop a range of skills and gain professional experience that is hard to obtain anywhere else.’

The recruitment round closes 1 February. Details of the role are set out in the Guide for Applicants. You can apply via the Civil Service Jobs and the Ministry of Justice websites.

 

Recent Reads

Social Media Law: a new practice area?

Writing on Tumblr, CJ McKinney interviews media barrister Greg Callus, who appeared for Jack Monroe in a successful Twitter libel action against Katie Hopkins (who has recently been refused permission to appeal against the judgment of Warby J finding her liable). The piece takes the form of an interview, parts of which are being published in Verdict magazine.

Donoghue v Stevenson: new video resources

The Sir Harry Gibbs Legal Heritage Centre at the Supreme Court of Queensland has produced some new resources on the case of Donoghue v Stevenson, which was tweeted by Kylie Burns, whose Twitter handle is @snailsinbottles. That’s dedication. The new material forms part of a collection dedicated to Lord Atkin, one of our greatest judges, who came from Queensland.

Law (and injustice) from around the world

America

Dieu est mon droit

As God is my judge, or rather my jury… A judge in Texas has been in the news this week after he interrupted the deliberations of a jury in his court to  instruct them to find the defendant, a woman accused of trafficking a teen girl for sex, not guilty. Judge Jack Robison, a state district judge in Comal County, is reported to have apologised to the jurors saying ‘when God tells me I gotta do something, I gotta do it,’ according to The Statesman, quoting the  Herald-Zeitung in New Braunfels. The latter also reported that, shortly after the judge recused himself from the remainder of the proceedings, the jury sentenced the defendant, Gloria Elizabeth Romero Perez,  to 25  years in prison for continuously trafficking her teen niece to a much older man. They acquitted her on a second charge, sale or purchase of a child.

India

Judicial independence under threat

Earlier this month four justice of the Indian Supreme Court held a press conference to draw attention to issues relating to the independence of the judiciary and the conduct of the present Chief Justice of India, Dipak Misra.

The extremely unusual press conference was held at the residence of Justice J. Chelameswar, and also addressed by Justices Ranjan Gogoi, Madan B. Lokur and Kurian Joseph. The tipping point seems to have been issues arising out of the death of special CBI Judge B.H. Loya. According to the Times of India, the justices had

‘raised five grievances, including the distribution of important cases, and selective assignments of important cases based on preference, instead of rationality. Efforts are on in several quarters to defuse the situation. The Bar Council of India played down the rift, calling it an “internal matter which will be resolved soon.”’

Some days later, it seems, the Chief Justice held a meeting with the four.

See also The Wire, Loya Case the Tipping Point, Four SC Judges Say Democracy Is in Danger

Somaliland

First ever anti-rape law passed

After seven years of debate, the Somaliland parliament has passed a bill outlawing rape – the first law addressing gender-based violence in the state’s history. According to the Sigrid Rausing Trust, research which it has funded by the Strategic Initiative for Women in the Horn of Africa (SIHA)  on sexual violence in the country since 2010 including a special report on gang rape in warfare (2015) ‘has been crucial in bringing the issue to public and government attention.’ The SR Trust also explain:

In the past, local traditional law in Somaliland required a perpetrator of rape to marry his victim, causing great distress to victims and their families. Under the newly-passed law, however, convicted rapists will face up to 30 years’ imprisonment.

The bill has been agreed in the lower house of parliament, but still needs approval from the upper house. If it gets final approval, it is hoped that the president will sign it into law at the beginning of March 2018.

And finally… Tweet of the week

which comes from @acatfromgreece,  introduces a lighter approach to forms of address.

That’s it for now. Enjoy the week ahead, with all its legal challenges. Thank you for reading… and keep those tweets coming.

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.