This week’s roundup of legal news and comment includes a ministerial reshuffle, transparency of parole board and coroner’s court decisions, and media regulation.

Politics

All change at the Ministry

As with the changing of the guard (depicted), cabinet reshuffles seem to involve a lot of individuals marching in and out of Downing Street, with not much change in the overall appearance or management of things. The Ministry of Justice has undergone this more acutely than some other ministries. Although there isn’t a revolving door on the street entrance to 102 Petty France in St James, London, where the Ministry is based, there might as well be, given how many Lord Chancellors and Secretaries of State we have seen go in and out in the last few years. Depending how you look at it, we’ve had four in the last 18 months, and six in the last six years.

So out goes David Lidington, in who was appointed Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster on 8 January 2018. In comes David Gauke MP, formerly Secretary of State for Work and Pensions, a position he may have abandoned with some relief, given that the former Secretary of State for Education, Justine Greening, refused to move there, preferring to resign altogether. The DWP post has now been taken by Esther McVey, with all due (or rather universal) credit to her.

What do we know about Gauke? Well, the most significant thing we know is that he’s a lawyer. (Muted harrahs.) The last four LCSSJs have been non-lawyers and, apart from some positive ideas (little actually implemented) from Michael Gove, and some more positive support for the rule of law and independence of the judiciary from David Lidington, they have not been particularly pro-lawyer in their general outlook. The very fact that we’ve seen so many ministers come and go is itself a demonstration of Downing Street’s view of the ministry as a sort testing ground for ambitious politicians on their way up the greasy pole of preferment, or a subs bench to keep someone on standby (or sit-by) until a more exciting post becomes vacant.

Whether the fact that David Gauke read law at Oxford and trained as a solicitor means he will restore the Lord Chancellor’s role to the eminence it enjoyed when occupied by senior judicial figures in the admittedly not always entirely halcyon days before the Constitutional Reform Act 2005 remains unclear. Lawyer 2B reports that he trained at Richards Butler (now Reed Smith), before working at Macfarlanes. He was elected MP for South West Hertfordshire in 2005. His record is not desperately encouraging.

Lower down the pecking order, Dominic Raab (a lawyer) has been replaced as Minister of State (ie the Number Two) by Rory Stewart OBE (previously Minister of State at the Department for International Development); Dr Philip Lee remains  Parliamentary Under Secretary of State for Youth Justice, Victims, Female Offenders and Offender Health; Lucy Frazer QC replaces Sam Gyimah as Parliamentary Under Secretary of State at the Ministry of Justice; and Lord Keen of Elie QC remains Advocate General for Scotland and the spokesperson for Ministry of Justice business in the House of Lords.

Legal profession

New Bar Chair takes over

Andrew Walker QC has replaced Andrew Langdon QC as Chair of the Bar. One of his first actions was to welcome the appointment of the new man at the Ministry, David Gauke MP, into his post and to remind him, with a message from the Bar Council, of the need

‘to ensure access to justice is available to all, to ensure that the system for securing the administration of justice is resourced properly and functioning effectively, and to achieve fair and sustainable public funding arrangements for advocacy and legal advice.’

In particular, he said,

‘Following significant cutbacks in the provision of legal aid over several years it is vital that the Ministry of Justice completes the thorough review of the Legal Aid, Sentencing and Punishment of Offenders Act to which it is already committed, to ensure that the public interest in the provision of high quality and efficient legal services is addressed.’

In his first Chair’s Column in Counsel magazine, Walker paid tribute to his predecessor (who I think we can all agree has been an outstanding Chair in 2017) and set out his stall as Chair for the coming year. He began by expressing a sense of relief that the ill-omened QASA scheme had died. “It is not just the criminal Bar who should welcome this. QASA was only the start. In time, many of us could have faced something similar.” But he urged caution, with a warning about one of the issues QASA had been intended to address, namely the “level playing field in Crown Court defence work”.

‘The Bar Standards Board has not taken its eye off the quality assurance ball, either in criminal defence advocacy or in any other field.’

Parole Board

Transparency agenda in wake of Worboys release

A huge polito-legal row has broken out over the early release on licence of John Worboys, a London cabbie convicted of rape and a number of sexual offences in 2009. He was sentenced to Imprisonment for Public Protection’ (‘IPP), with a minimum term before any possible release of 8 years. At a review in November, the Parole Board decided to allow his release, but for reasons which have not – and currently cannot , be made public. Rule 25 of the Parole Board Rules says:

“Information about proceedings under these Rules and the names of persons concerned in the proceedings must not be made public.”

This has caused an outcry.

Worboys was described as a dangerous predator, who drugged his victims before raping or sexually assaulting them. He was tried on an indictment containing 23 allegations and convicted of 19 of them, one of them for rape, the others relating to  sexual assaults and the administration of drugs to his victims. But it appears that more than 100 had complainants made allegations against him, most of which were not the subject of prosecutions, and that the police failed properly to investigate them: see the judgment of Green J in two test case claims by such victims against the police, DSD v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB)

So the outcry is based not on the fact that Worboys has been released after 8 years of what would have been, but the IPP, a 16 year sentence, but on the perception that a man who committed 100 rapes has been let out after serving what amounts to only a month or so for each of them. And we don’t know why.

For more detailed explanations of the row, see:

The Secret Barrister, i news, Why is a man who raped “hundreds of women” being released from prison after only 9 years?

Crimeline Complete, Worboys – What went wrong?

Barrister Blogger, The Parole Board may have got it wrong but it should not be intimidated out of making unpopular decisions

Simon McKay, The Justice Gap, John Worboys: ‘Let the victims to have their say’

Matthew Stanbury, Garden Court North Chambers, Questions arising from the release of “the Black Cab Rapist” John Worboys

Shortly before the cabinet reshuffle the then LCSSJ, David Lidington, issued a statement about the matter, saying:

‘While it is right that the Parole Board should remain an independent body, I believe that there is a strong case to review how to allow greater openness about the decision-making process.’

He said he proposed to review the transparency of the board’s processes with a view to involving victims or at least keeping them better informed. It wasn’t clear whether he also wanted to provide such transparency for the benefit of the general public and media commentators, but that would surely be a good thing. As with sentencing remarks, judgments on BAILII etc, publishing information doesn’t mean people read or understand it, even before writing about it in the media, but it does mean they can’t complain that they haven’t had the chance of doing so.

Since then there’s been a reshuffle and now the new LCSSJ, conscious perhaps that his predecessor’s announcement has not dowsed the flames of public concern, has issued his own statement on the review proposals.

Although in that statement Gauke says ‘it appears that the correct procedures were followed,’ in relation to informing the relevant victims and complainants, it has subsequently been reported that he proposes a more radical form of review. According to the BBC,

‘Justice Secretary David Gauke is looking into the possibility of applying for judicial review, but will only proceed if there is a good chance of success.

If a judge finds the Parole Board did not follow the correct process or reached its decision on the wrong basis, that decision would be quashed and Worboys would have to make a fresh application for parole.’

This demonstrates, among other things, what a different beast this Lord Chancellor is compared with his recent predecessors. (One of them, Chris Grayling, smarting from having lost a few JR claims brought against him, did his utmost to restrict the availability of the remedy, which he thought was being abused.) However, it’s possible that the main purpose of initiating JR proceedings would be to prevent the Parole Board’s decision being carried out pending such review, either in the hope of reversing the decision (which seems unlikely) or simply to buy time for the row to die down. It would also, of course, have the effect of publicising the reasons for the decision, which would be aired in open court and probably quoted in the court’s judgment, whichever way it went.

Media Regulation

All change (not) at DCMS

Another consequence of the cabinet reshuffle has been the replacement, as Secretary of State for Digital, Culture, Media and Sport, of Karen Bradley MP by Matt Hancock MP, who has very quickly shown his colours on the question of press regulation. He doesn’t seem to like it.

Readers with a long and patient memory will recall that way back in the gloomiest days of 2016 Bradley launched a consultation on whether to resume Part 2 of the Leveson Inquiry (looking into possibly corrupt relations between the police and the media), and whether to implement (bring into force) Crime and Courts Act 2013 (which would have the effect of protecting any publishers signed up to a Leveson-compliant regulator from a requirement to fund the costs of defamation claimants even if they successfully defend the claim).

The consultation closed over a year ago, but no decision was made then or since as to whether to implement section 40 or resume the Leveson inquiry. The UK Press Gazette reported that there had been 140,000 responses to the consultation.

In October 2017, Karen Bradley had informed the Digital, Culture, Media and Sport Committee in Parliament that the Government’s decision and response to the consultation would be published before the end of the year, but that did not happen.  The last we heard was that the government’s response to the consultation had been further delayed while the views of Sir Brian Leveson were sought on the other (including the publishers’) responses. Since then, radio silence.

So what has happened since the reshuffle? Well, the Lords had a debate on the Data Protection Bill in which they passed amendments which would have the effect of bringing section 40 into effect and voted to resume the Leveson inquiry. And almost immediately Hancock tweeted his displeasure and his avowal to reverse it in the Commons.

See also Press Gazette, Culture Secretary accuses peers of voting to ‘restrict press freedoms’ as house backs Leveson Two and cost penalties for data breaches

Coroner’s Courts

Transparency concern over plans for paper hearings

As the new law term began, the Times Law Brief newsletter picked up the plans outlined in the Report of the Chief Coroner to the Lord Chancellor for 2016-17 for inquests in uncontroversial cases to be decided on paper rather than holding public hearings. ‘The proposal has prompted concerns of a shift towards “secret justice”, removing public and media access from thousands of inquests’, the Times reported.

What the report actually proposed was, at paras 167-168:

‘167. There is no need for all inquests to be concluded with a hearing. In a case where the facts are not contentious, no witness are required to attend, the outcome is clear (at least on the balance of probabilities), the family do not want an inquest and there is no other public interest for conducting an inquest in a public hearing, the case could be concluded by a decision ‘on the papers’ with a written ruling.’

‘168. A written ruling would have the advantage that it is a clear (and brief) decision with reasons, based upon the circumstances of the death, with findings of fact and a conclusion (short-form or narrative). This ruling could be handed down in open court and provided to the family for them to keep.’

So if the ruling is handed down in open court, where is the secrecy? Nowhere yet. But the report goes on, at para 170, to speculate that:

‘With the increasing use of digital technology across the mainstream Courts and Tribunals estate in England and Wales, there are fewer hearings in court, and this will lead in due course, in straightforward cases to inquests being concluded with the need for a hearing. Clearly, where an inquest must be held with a hearing or where there is a clear public interest in holding an inquest with a hearing, then a hearing will be held.’

So there’s the sting. With courts going digital and online, there would be no need for any sort of hearing at all, even to hand something down. But by the same token, where everything is digital and online, the scope for transparency and public access is all the greater – subject to appropriate restrictions for privacy where justified. But is this in contemplation?

Concerns about transparency of the online courts (or a singular Online Court, if such it be), have been aired for some time, not least on this blog. This seems like another example of a situation where the concept of transparency has not been properly anticipated or thought through.

You can read more about the Coroners’ Courts in this Short Guide published by the MoJ.

 

Obituary

Sir Brian Neill

After a colourful practice at the Bar specialising in libel and high profile media cases, during which he took silk in 1968, Neill became a High Court judge in 1978, and a Lord Justice of Appeal from 1985 until 1996. After that he practiced as an arbitrator from 20 Essex Street, which recorded with sadness his recent death on Christmas Eve.

There is an obituary in The Times.

He was also a keen supporter of technology in the law and a former president of the Society for Computers & Law, as this tweet from Professor Richard Susskind, only last summer, notes:

That’s it for now. We’ll have more next week. Our thanks to all who flagged up stories, via their blogs or on Twitter.

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.