Weekly Notes: legal news from ICLR, 29 January 2024
This week’s roundup of legal news includes international law, freedom of information, knife crime, Post Office Horizon scandal, and family law. Plus recent case law and commentary.… Continue reading
ICJ issues provisional measures on Gaza conflict
The International Court of Justice in The Hague issued provisional measures in the case of South Africa v Israel, in advance of its full determination of a claim brought by South Africa concerning alleged violations in the Gaza Strip of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.
In its ruling the court reiterated, citing Ukraine v. Russian Federation (2022), that it had power to issue provisional measures in such a case:
“The Court may indicate provisional measures only if the provisions relied on by the applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but it need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case…”
The court went on to find that
“In the Court’s view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention.”
It concluded that it had prima facie jurisdiction to entertain the case, that South Africa had standing to bring it, and that the circumstances were “sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible”.
“46. The Court notes that the military operation being conducted by Israel following the attack of 7 October 2023 has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure. While figures relating to the Gaza Strip cannot be independently verified, recent information indicates that 25,700 Palestinians have been killed, over 63,000 injuries have been reported, over 360,000 housing units have been destroyed or partially damaged and approximately 1.7 million persons have been internally displaced…”
The conditions required for the court to indicate some provisional measures were met. However, “the measures to be indicated need not be identical to those requested”. Instead, the measures eventually ordered by the court included the requirements that The State of Israel:
- shall, in accordance with its obligations under the [Convention] , in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention…
- shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip
- shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the [Convention] against members of the Palestinian group in the Gaza Strip
The court did not issue any provisional measures against Hamas or the Palestinian population or officials or any other group involved in the conflict, not least because they were not named parties to this case, but it did include them in its reasons in this final exhortation:
“85. The Court deems it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.”
As has been pointed out in the EJIL:Talk! blog by Marko Milanovic, the ruling fell some way short of the claimant’s hopes:
“the Court did not indicate the most important measures asked for by South Africa, i.e. it did not order Israel to stop its military operations altogether, unlike in the case brought by Ukraine against Russia.”
Milanovic says the ruling is “largely a foregone conclusion”, but that the individual reasoning of the judges would repay close reading, once available.
These can now be found linked in the comment on the ruling by Joshua Rozenberg, A Lawyer Writes: Judges say Israel must prevent genocide.
Commenting on Bloomberg (Israeli Genocide Ruling Will Be Hated Because It’s Fair), its columnist Marc Champion said
“In the meantime, Israel has lost the battle for international hearts and minds, which for a state so isolated is dangerous. … Yes, public opinion was always going to be skewed against the Jewish state by history and prejudice. It’s also true that nowhere near enough international attention gets paid to the role Hamas played in first inviting this tragedy on Gaza, and then deliberately using civilians as human shields. It is to South Africa’s shame that it did not do more to acknowledge this in its case against Israel. Yet the conduct of the war, and its framing by Prime Minister Benjamin Netanyahu and his government were choices made by them alone. The ICJ ruling should give them pause.”
See also, on the EJIL:Talk! blog, by Nico Krisch: Speaking the Law, Plausibly: The International Court of Justice on Gaza
The ICJ is a United Nations body. As are a lot of organisations with various roles who may have some involvement in dealing with the conflict. But perhaps none more so than UNWRA, the United Nations Relief and Works Agency for Palestine Refugees in the Near East, founded in 1949, whose embarrassment may be imagined when it was forced to disclose, on the same day that the above ICJ ruling was made public, that a number of its own officers and employees had been suspected of involvement in those very same bestial atrocities against Israel on 7 October 2023 referred to in the ICJ ruling.
UNRWA issued a statement saying the suspected employees’ contracts had been terminated and an investigation launched in order to establish the truth without delay.
“UNRWA reiterates its condemnation in the strongest possible terms of the abhorrent attacks of 7 October and calls for the immediate and unconditional release of all Israeli hostages and their safe return to their families.”
In response to the revelations, nine countries including the UK and US have suspended their funding for the agency. The EU said that it would assess further steps “based on the result of the full and comprehensive investigation”.
Freedom of Information
Government response delays criticised
Journalists are increasingly frustrated by failures in government compliance with the Freedom of Information Act, according to the Press Gazette. Response times are getting slower and the number of FOI requests turned down or not answered is getting higher.
Press Gazette analysed the last decade of government FOI data and found that, over the last decade, the number of resolvable requests being ‘granted in full’ has dropped from a high of 55% in 2013 to just 34% in the second quarter of 2023 — as recorded in the government’s own transparency statistics (Freedom of Information statistics: April to June 2023 bulletin).
Since then, however, the figure has dropped still further: it was only 32% in the third quarter of 2023, according to the government’s July to September 2023 bulletin.
The article also suggests that the percentage of FOI requests responded to within 20-day limit has fallen from 86% in 2013 to 77% in 2023, although the government figures appear to suggest the figure is more like 80%.
Anecdotally, however, there certainly seems to be evidence of a failure by many public organisations to engage with or promptly and fully respond to FOI requests. See, for example, the Transparency Project’s efforts to obtain answers via FOI from CAFCASS: The Cafcass in-house psychological service — our unanswered questions
If only. Over the weekend we heard yet more sad news of what has been described as the epidemic of knife crime, largely affecting young people. In Bristol, two teenage boys were stabbed and died on Saturday night. In London last week another teenager was stabbed in a park in Feltham. And on BBC Breakfast the parents of Barnaby Webber, who with another 19-year-old student, Grace O’Malley-Kumar, was stabbed by Valdo Calocane in Nottingham last June, spoke of their devastation and loss.
Calocane, who also went on to kill 65-year-old Ian Coates the same night, pleaded guilty to manslaughter on grounds of diminished responsibility and was made subject to a hospital order. In his sentencing remarks, Mr Justice Turner told Calocane he would detained in a high security hospital, “very probably for the rest of your life”. As for the victims, “You have sentenced them to a life of grief and pain.” Though he had a history of psychosis, he deliberately avoided taking his medication or attending appointments. There remain questions about the failures by police and mental health services to follow up on his case, and calls for an inquiry.
The public consciousness of these and other tragic stabbings might obscure the “ray of optimism” of Keith Fraser, chair of the Youth Justice Board in a recent blog, that Annual Youth Justice Statistics for 2022 to 2023 showed “reductions in cautions and sentences for knife crimes involving children”. In any case, the statistics themselves point out that in the longer term things have got much worse:
“There were just under 3,400 knife or offensive weapon offences resulting in a caution or sentence committed by children. This is a fall of 4% compared with the previous year, though 23% higher than ten years ago.” (Our emphasis.)
However, looking at youth offences generally, “While there was an increase in the latest year, the number of proven offences was 65% lower than ten years ago.”
Looking at knife crime across the whole population, the latest statistics in a recent parliamentary research briefing (Number CBP 04304) suggest that:
“In 2022/23 there were around 50,500 offences involving a sharp instrument in England and Wales (excluding Devon & Cornwall). This was 4.7% higher than in 2021/22 but 7% lower than in 2019/20.
“Since 2019/20, the total number of selected offences involving a knife or sharp instrument (including Greater Manchester but excluding Devon and Cornwall) has fallen by 7% (from around 54,300 to 50,500). The main offences involving a knife or sharp instrument recorded in 2022/23 were assault with injury and intent to cause serious harm (48.4%) and robbery (41.5%).”
But the trend since 2010 has been an overall increase from 36,000 in 2010/11 to 50,500 in 2022/23, which is worrying. The temporary reduction (to 44,000) in 2020/21 seems attributable to the lockdown.
Post Office Horizon Inquiry
Recent posts on Prof Richard Moorhead’s blog about the inquiry include:
The Law Society and the Post Office: Clamouring about the Law Society’s embarrassment on the Post Office growing. Quoting council member Paul Gilbert, who said “The last President said ethics would be a key plank in her platform — cue a year of tumbleweed at a time of the greatest ethical scandal and crisis for lawyers in my lifetime. … The line that we must await the findings of the Inquiry should not stop an abject and fulsome apology for the harm lawyers have done.”
The mealy-mouthed mothers of injustice: Moorhead digs into the Post Office’s latest corporate code of conduct and wonders how an example from the Post Office scandal would fare against the five tests in its “Ethical decision-making model”.
Sorry from the Professional Imaginarium: Moorhead notes that “The Post Office Inquiry has been littered with apologies, some from lawyers” and attempts to categorise them in a sort of “nature notes” way.
Shutting Down: in yet another post, Moorhead examines accusations that a former general counsel Susan Crichton helped the Post Office CEO Paula Venells shut down MPs and sub-postmasters making complaints of miscarriages of justice.
Some commentators have claimed that the decision to expedite by legislation the process of formally exonerating the sub-postmasters wrongly convicted as a result of faulty Horizon evidence “potentially runs afoul of certain core constitutional principles, in particular the separation of powers. It has also been claimed that the ‘crown does not have a prerogative of justice but only a prerogative of mercy’.” In a recent post on the UK Constitutional Law Association Robert Craig on considers and challenges those claims: The constitutional implications of legislating to exonerate the Post Office sub-postmasters.
Dr Natalie Byrom argues that the law at present is inadequate to prevent a repeat of the Horizon scandal. Here she expands on her article in The Times, via LinkedIn: Has the government learned the lessons of the Post Office Scandal in time to fix the Data Protection and Digital Information Bill? She says the common law presumption — that computers are working properly unless the contrary can be shown — “which was unsatisfactory when recommended by the Law Commission in 1997, is completely untenable in the age of AI- where increasingly opaque systems rarely show their workings”.
Early advice and mediation
Families who are separating will benefit from early legal advice, greater use of mediation, and the continued rollout of an innovative pilot which better supports domestic abuse victims and children, the Ministry of Justice has announced, following its response to the Private Family Law Early Resolution Consultation published on 26 January 2024.
But an earlier proposal for mandatory mediation was rejected over concerns about insufficient safeguards to protect domestic abuse victims. Where appropriate mediation is still being encouraged as a first step in the hope that litigation can be avoided. According to the government’s announcement:
“The role mediators can play will be bolstered through improved domestic abuse screening and advanced DBS checks, meaning they have the right vetting and can support children earlier in the process. This, alongside the mediation voucher scheme which has already helped nearly 25,000 families, will mean more couples can resolve their issues without ever reaching court.
For those who do end up going through the courts, a successful pilot in North Wales and Dorset, aimed at reducing conflict, will be expanded to the family courts in Birmingham and south east Wales, ahead of a national roll out. The model improves information sharing between agencies like the police and local authorities so victims avoid retelling traumatic experiences.
It also allows judges to review more documents before a case gets to court, to prevent further conflict in the courtroom, and gives children extra opportunities to explain how they feel about decisions which affect their future.”
The next general election is now less than a year away. David Allen Green explains, via Law and Policy Blog: How the the next general election in the United Kingdom is now less than a year away. He reckons the latest date for it to be 28 January 2025.
But, subject to distractions over leadership challenges, policy implosions etc, we say the most likely time is in the autumn, just after the various party conferences (aka pep talks), so probably November. Brace yourself.
Dates and Deadlines
Applications for Supreme Court Judicial Assistants
Applications are open for up to 11 Judicial Assistants to support the work of the Justices of the Supreme Court of the United Kingdom and Judicial Committee of the Privy Council (JCPC) during the 2024/25 legal year.
The closing date for applications is midnight on Sunday 31 March 2024.
Find out more about the role and register for a free online information session via the UK Supreme Court website.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
COMPANY — Restructuring plan — Sanction: In re AGPS Bondco plc (Strategic Value Capital Solutions Master Fund LP v AGPS Bondco plc), 23 Jan 2024  EWCA Civ 24;  WLR(D) 35, CA
CRIME — Malicious communication — Grossly offensive message: R v Casserly, 23 Jan 2024  EWCA Crim 25;  WLR(D) 33, CA
EMPLOYMENT — Protected disclosure — Job applicant: Sullivan v Isle of Wight Council, 22 Jan 2024  EAT 3;  WLR(D) 31, EAT
PRACTICE — Family proceedings — Family Court: In re K (K (Children) (Powers of the Family Court)), 11 Jan 2024  EWCA Civ 2;  WLR(D) 26, CA
INTERNATIONAL LAW — Sanctions — Economic sanctions: Phillips v Secretary of State for Foreign, Commonwealth and Development Affairs, 12 Jan 2024  EWHC 32 (Admin);  WLR(D) 13, KBD
IMMIGRATION — Deportation order — Appeal: Geddes v Secretary of State for the Home Department, 22 Jan 2024  EWHC 66 (Admin);  WLR(D) 27, KBD
IMMIGRATION — Human trafficking — Victim: XY v Secretary of State for the Home Department, 23 Jan 2024  EWHC 81 (Admin);  WLR(D) 32, KBD
NEGLIGENCE — Psychiatric injury — Legal proximity: Paul v Royal Wolverhampton NHS Trust (Purchase v Ahmed, Polmear v Royal Cornwall Hospitals NHS Trust), 11 Jan 2024  UKSC 1;  WLR(D) 34, SC(E)
SOLICITOR — Costs — Assessment: Kenig v Thomson Snell & Passmore LLP, 18 Jan 2024  EWCA Civ 15;  WLR(D) 30, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Legal Futures: Insurer not entitled to hold back evidence of potential PI fraud: AXA Insurance UK plc v Kryeziu  EWHC 3233 (KB), KBD
Local Government Lawyer: Some recent cases on witness statements: R (Suez Recycling and Recovery UK Ltd) v Environment Agency  EWHC 3012 (Admin);  WLR(D) 497, KBD
Local Government Lawyer: Interim removal of children: In re J (Children: Interim Removal)  EWCA Civ 1266, CA
Mental Capacity Law and Practice: We all die: what are doctors’ duties to shield families from the sight of death? Paul v Royal Wolverhampton NHS Trust  UKSC 1, SC(E)
Local Government Lawyer: Court of Appeal moves to reaffirm “wide and flexible powers” of family court in care case: In re K (Children) (Powers of the Family Court)  EWCA Civ 2;  WLR(D) 26, CA
Nearly Legal: Housing and Children Act — homeless 17 year olds: R (DF) v Essex County Council  EWHC 3330 (Admin), KBD
Law & Religion UK: “Sufficient interest” in faculty petitions — II Re St. Nicholas Leicester  ECC Lei 3, Const Ct
Law & Religion UK: Forms of Objection in Faculty Proceedings: Re St. Michael Chiswick  ECC Lon 1, Const Ct
Mishcon de Reya: A bitter finding for Thatchers as Aldi ‘lookalike’ held not to infringe: Thatchers Cider Company Ltd v Aldi Stores Ltd  EWHC 88 (IPEC), Ch D
Legal Futures: Court of Appeal sets out limits of relief from sanctions regime: Yesss (A) Electrical Ltd v Warren  EWCA Civ 14, CA
Lawyer Watch: Interlocutory Iniquity: Al Sadeq v Dechert LLP  EWCA Civ 28, CA
Tweet of the week
is a plug for my book, co-authored with Dr Julie Doughty and Lucy Reed KC.
Transparency in the Family Courts – Publicity and Privacy in Practice – 2nd Edition out shortly. Pre-order now by me, @Maggotlaw and Julie Doughty, published by @BloomsburyPro https://t.co/98gOBf2t7l pic.twitter.com/Q0k7Rb2bga
— Lucy Reed (@Familoo) January 28, 2024
That’s it for this week. Thanks for buying my book, and thanks for all your tweets, toots, posts and threads.
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.
Featured image: the International Court of Justice in The Hague (via Shutterstock)