Weekly Notes

Weekly Notes: legal news from ICLR – 4 December 2017

This week’s roundup of legal news and commentary includes the Grenfell Inquiry, data protection, media regulation, yet more Brexit, plus two sadly missed judges and a regulatory scheme that few will mourn.

Grenfell Tower Inquiry

Progress and protest

The Guardian reported that “Grenfell survivors may boycott public inquiry unless they get bigger role”. Fifty survivors and family members have issued a petition calling on the Prime Minister, Theresa May to

“exercise her powers under the Inquiries Act 2005 to appoint additional panel members with decision making power to sit alongside Chair in Grenfell Tower Inquiry: to ensure those affected have confidence in and are willing to fully participate in the Inquiry.”

Their complaint seems to be that the chair, Sir Martin Moore-Bick, lacks the empathy to lead the inquiry alone and needs to have a panel of people who might have life experience more like that of the victims, such as having lived in a tower block or social housing. They also object to being required to submit questions for witnesses a week in advance rather than allowing their legal representatives to ask questions during the hearing itself.

In fact the Inquiry has already appointed some panellists: its latest update announced that “three assessors, each with specific experience and expertise felt to be of value to the Inquiry, have been appointed to assist the Chairman.” However, these are really more like expert witnesses, with lots of letters after their name, rather than the sort of jury-like “peers” that the victims’ petition seems to be calling for. They are not in fact witnesses. They do not give evidence and may not be questioned at the inquiry. According to the announcement, their role includes:

  • taking part in Inquiry proceedings as requested by the Chairman;
  • providing suggested lines of questioning for witnesses to Counsel to the Inquiry; and
  • providing assistance and advice on any other matter relevant to the Inquiry within their area of expertise.

The three are:

  1. Joe Montgomery CB, who has more than 30 years’ experience of leading large-scale housing, infrastructure and regeneration programmes, with a particular focus on working with disadvantaged groups in diverse communities.  He has been appointed to assist the chair in  considering issues related to community engagement and the occupation and management of social housing.
  2. Joyce Redfearn CBE has extensive Chief Executive-level experience in the fields of local government and health. She has been appointed to assist the chair in identifying best practice among local authorities in relation to matters such as the management of finances and the procurement of services relating to the design and construction of residential buildings.
  3. Professor David Nethercot OBE, BSc, PhD, DSc, FREng, FIStructE, FICE, FCGI is Emeritus Professor of Civil Engineering at Imperial College London, where he was formerly Head of the Civil and Environmental Engineering Department, and Deputy Principal (Teaching) of the Engineering Faculty. He has been appointed to assist the chair in considering technical issues relating to the design and construction of the building and its refurbishment.

Should the need or desire arise, the chair can appoint other assessors. He might think it would be desirable to appoint someone, as it were, from the other side of the fence, to help understand the fears and expectations of the victims, and others who find themselves in a situation, not of their own making, at the mercy of powers not of their choosing, and expected to be grateful for the housing and facilities upon which they cannot afford to improve. Someone or someones who might prove better champions of their interests than some of the local and national politicians, and/or correct the perceived bias or risk of bias in the current tribunal. Yet how would he choose such people?

What the victims really want might be something more like a jury. That’s something you could expect from an inquest, but not from an inquiry.  For more about the differences between the two, see a Commons Library briefing paper (Number 08012, 21 June 2017) on Inquests and Public Inquiries.

The Inquiry update noted that a number of expert witnesses in the field of forensic fire analysis and fire engineering have also been appointed. The evidence of former residents and firefighters involved is also been recorded in statements to the inquiry. Community engagement is also a priority, with a weekly drop-in meeting being held every Thursday from 16 November 2017, at the Latymer Community Church. Reading the update, one gets the impression the Inquiry team is doing its level best to accommodate the victims and relatives, and to respect their status. They say:  

To give a voice to those who have been personally affected by the fire, the Inquiry intends to publish residents’ accounts as part of the formal record of the Inquiry, so that their experiences form a permanent testimony to the dreadful events of the night of 14 June 2017.”

Brexit

Another referendum?  Not likely.

For some time there has been discussion, particularly among remainers, about the possibility of holding a further referendum on Brexit, in order to approve or reject the final deal reached with the rest of Europe over Britain’s exit. Leaving aside the question whether the best cure for a referendum is another referendum (a sort of “hair of the dog” approach), the more practical objection, as David Allen Green explained last week on his Jack of Kent blog, is lack of time.

Here is some downbeat information for those who want a further referendum on Brexit before 29 March 2019, the day on which the United Kingdom leaves the European Union by automatic operation of law (unless something exceptional and not currently in view happens).

There will soon not be enough time to get legislation in place.

But others disagree. Adam Wagner, barrister and founder of the UK Human Rights blog, tweeted his support for the idea over the weekend:

Meanwhile the negotiations continue. Of the three preliminary issues to be resolved before the other 27 EU nations were prepared to discuss a trade deal, two have been settled but a third remains live.

The money question (or “Brexit bill”) seems to have been settled by agreeing a sum of 50bn euros (£44bn). (“Brexit account” or “Brexit invoice” would be better, because “Bill” has overtones of the legislation that will need to be passed to effect it.) The rights of EU citizens question seems to have been settled by agreeing to let them stay, while possibly making it harder for new ones to come (except that industry, farming and things like the health service say we need more of them now). The sticking point du jour is the Irish border — hard, soft or “wet”. (The wet option involves a border in the sea between the island of Ireland and the British mainland.) The EU have given the Irish a veto on whatever arrangements are proposed. Words have been exchanged (some of them quite rude). So the border may ultimately take the form of a wall of animosity rather than any physical or geotechnical barrier.

Making the best of Brexit

Last week the National Audit Office blog had a post from Amyas Morse, Comptroller and Auditor General, emphasising the need for the government to prioritise Brexit over other infrastructural developments:

Unlike other projects where the usual answer is for timetables to slip and reductions in scope, leaving the EU could have an immovable, hard deadline.

Implementation of the programme to leave the EU requires clear focus and priority. We now need to act in the interests of the nation, not those of individual departments.

Tough decisions and effective prioritisation are needed. This is the government’s role – it is not the role of individual departments. This means reviewing its existing commitments and assessing how many of them can still be managed, and what resources are really required for the priority tasks at hand.

No doubt this approach is in part what has informed the Chancellor of the Exchequer, Philip Hammond, in his latest (and for many, who had expected more largesse, disappointing) budget.

Another call for better cooperation with the inevitable came from the senior judiciary, in the person of  Sir Geoffrey Vos, Chancellor of the High Court, who said that judges “cannot and should not speak about the politics of Brexit”.

The effect of this is that judges need to approach Brexit from the now established fact that the UK will be leaving the EU. It does not matter whether we were personally in favour of or against that course. It is our duty to ensure that the justice system of England and Wales is as efficient and effective as possible to deal with the legal challenges created by the UK’s departure from the EU.

He was speaking to a Legal Business Seminar in Frankfurt, on The Future for the UK’s jurisdiction and English law after Brexit.

One of the things he discussed was the advantage of the common law system of judge-made law in adapting to the requirements of “a fast-changing commercial environment”. However, he was anxious to dispel the notion that Brexit would render the common law uncertain, or that there would be two speeds of EU law, that continuing to be interpreted and applied by the European Court of Justice in Luxembourg, and that frozen in English law at the point or departure and thereafter interpreted and applied by the UK courts.

So, whilst it is true that English regulatory law may develop slightly differently from European law after Brexit, that will not create uncertainty for the common law or make English jurisdiction any less effective for the purposes of dispute resolution.

As a member of a committee established by our former Lord Chief Justice, Lord Thomas, and the former Lord Chancellor, Liz Truss, called the Brexit Law Committee, he presumably knows what he’s talking about.

Data protection

Consultation on investigatory powers

The government has issued a consultation on the amendments that it is proposing to the Investigatory Powers Act 2016 (by way of regulations made under section 2(2) of the European Communities Act 1972) and on a draft code of practice. This has been prompted by a need to change the law in response to the decision of the European Court of Justice, in Tele2 Sverige AB v Post- och telestyrelsen  (Joined Cases C-203/15 and C-698/15) EU:C:2016:970; [2017] QB 771, that aspects of the IPA’s predecessor, the Data Retention and Investigatory Powers Act 2014, were incompatible with EU law. This is mainly because (a) there is no provision for independent authorisation of requests for access to retained data; and (b) the crime purpose for retaining and accessing data is not limited to serious crime.

You can read the consultation here.

See also: Out-law, UK admits that Investigatory Powers Act needs updated to comply with EU law

Data Protection Bill

The bill’s purpose is to overhaul the UK’s data protection regime as well as supplementing the GDPR (whose provisions will be retained in UK law by virtue of the European Union (Withdrawal) Bill from March 2019). The DP Bill has now completed its HL Committee stage and is awaiting report stage on 11 December.

James Theaker on Inforrm’s blog reports on one particular aspect of the Lords’ discussion and the amendments proposed, namely the exemptions for the special purposes of journalistic, artistic, academic or literary expression.

Of additional interest to this blog, however, are the exemptions (provided under para 5 of Sched 2 of the Bill), for “Information required to be disclosed by law etc or in connection with legal proceedings” and (under para 12) “Judicial appointments, judicial independence and judicial proceedings”.

Personal data contained in law reports, usually reproduced from judgments, is presumably processed and retained for either law enforcement, judicial proceedings, or journalistic purposes, unless anyone has a better idea. But we’ll be happy to take advice on this. 

Media regulation

PRP report on recognition

The Press Recognition Panel (PRP) has published its second annual report on the recognition system, as required by its Royal Charter: Annual Report on the Recognition System 2017. Introducing the report, chairman David Wolfe QC says:

A year has passed since we published our first annual recognition report and stated that urgent action was then needed if the recommendations of the Leveson Report were to be given a chance to succeed. In that time, the Government has launched a consultation on the implementation of the Leveson Report, and the Data Protection Bill is currently before Parliament, but section 40 of the Crime and Courts Act 2013 has still not been commenced. There continues to be political involvement in press regulation because the system intended to bring that to an end has not yet been implemented in full. The need for action remains urgent.

This year the PRP has successfully defended its decision to approve the regulator IMPRESS, in judicial proceedings brought against it by the News Media Association: see R (News Media Association) v Press Recognition Panel  [2017] EWHC 2527 (Admin). 

The report notes that “There has been a concerted campaign to undermine the system, and discussion in some parts of the media about the Press Recognition Panel has been one-sided.”

The report also draws attention to the public consultation on media regulation, launched by Karen Bradley, Secretary of State for Culture, Media and Sport (as it was then designated), that closed in January 2017. Although the Conservative party included a commitment to repeal section 40 of the 2013 Act in its general election manifesto, no proposals to do so were included in the Queen’s Speech. In October 2017, Karen Bradley 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.

(Last week we reported that Sir Brian Leveson was being consulted over possible resumption of his inquiry, Part 2 of which was to look into collusion between the police and media – evidence of which has not been in short supply over the last week. But as to Leveson 2, no one is holding their breath.)

IPSO arbitration price rethink

Meanwhile the unrecognised regulator, or self-regulator, the Independent Press Standards Organisation, has had to re-launch its arbitration scheme after admitting that no one had used the original pilot scheme. The arbitration scheme had been launched in response to one of the recommendations of the Leveson Report (2012) as an alternative to litigation. In a somewhat embarrassing climbdown, or price-down, IPSO when announcing the new scheme, said:

The cost for claimants to use the scheme has been cut from £300 to a maximum of £100, split into a £50 fee at the start and a further £50 if the case goes to final ruling. Publishers will fund the rest of the administration cost and all of the arbitrators’ fees.

Other amendments to the IPSO scheme include:

  • New protections for members of the public representing themselves, to ensure they are protected from having to pay large legal costs to publishers, even if they lose a case;
  • Increased ability for claimants to recover their own legal costs from publishers, with safeguards to ensure that neither side incurs unreasonable costs;
  • A new power for arbitrators to require publishers to pay aggravated damages to a successful claimant, within the overall cap of £50,000;
  • New limits on the circumstances in which a publisher can recover fees and costs from a claimant.

It does seem odd for IPSO to have taken five years to get to the point of providing a genuine alternative, attractive to complainants, to the costly process of taking infringing publishers to court, particularly since the legislative provision (in section 40 of the 2013 Act) intended to allay the costs anxieties of claimants in compliance with Leveson’s recommendations has yet to be implemented.

Commenting on the IPSO scheme on Inforrm’s blog, the campaign group Hacked Off observed:

The new scheme suffers from many of the same defects. It remains a system designed to pay lip service to the Leveson Report while, in fact, being heavily loaded in favour of IPSO’s press paymasters.

In particular:

  • The system is voluntary for IPSO members – most newspapers are not even part of the scheme
  • Even those newspapers who have joined the scheme can pick and choose which cases go to arbitration, when Leveson said cherry-picking cases was not allowed and defeated the purpose.
  • There is an arbitrary “cap” on damages of £50,000 and a complainant cannot recover exemplary damages however badly the newspaper has behaved.
  • The scheme is run by a body, IPSO, which is controlled by the newspapers it claims to regulate and which is biased against members of the public
  • The arbitration scheme has not been independently judged as being fair and independent as Leveson required.

Legal professions

Death of QASA

Few will mourn the passing of QASA (pronounced “quasar” – hence the comic image, with thanks to Marvel). The Quality Assurance Scheme for Advocates was a cumbersome accreditation system for criminal court advocates dreamed up by the various law professional regulators and was widely opposed by practitioners. The Bar Standards Board announced its demise on 29 November 2017, saying it had  “decided to take a new approach towards the quality assurance of barristers following a review”. It went on to say:

“the BSB has created a supportive regulatory framework that is designed to help the profession to manage its own professionalism and standards in the quality of practice but with clear arrangements in place to address instances of poor practice or non-compliance.”

QASA was introduced in 2013 but met with sustained opposition from barristers and solicitors. It was also the subject of judicial review proceedings, which culminated in a decision by the UK Supreme Court on 24 June 2015 that the LSB’s decision to approve the scheme complied with the requirements of article 9 of Parliament and Council Directive 2006/123/EC and regulation 14 of the Provision of Services Regulations 2009 (SI 2009/2999), and was proportionate and lawful: see R (Lumsdon) v Legal Services Board [2015] UKSC 41; [2016] AC 697.

However, that was not the same as saying it was actually workable, and since then QASA has effectively been mothballed. Thus when the current chair, Sir Andrew Burns KCMG gave a speech in October 2015, setting out his “vision for the future of the Bar regulator” he was still saying “We intend to submit the revised QASA arrangements to the Legal Services Board in the New Year with the intention of getting it off the ground in the spring.” But by the time spring came, in April 2016, and he gave a speech entitled “2016-19 at the Bar: Opportunities, Risks, and the Role of the Regulator”, all mention of QASA had been quietly dropped.

It probably did not help that the attempt to introduce QASA coincided with an almost unprecedented assault on the legal professions by the coalition government, savagely cutting legal aid for much of the criminal advocacy whose standards QASA was intended to maintain, and mendaciously condemning those who opposed the cuts as “fat cats”. Nor could it have helped that the successful running of the scheme depended on the imposition of extra work on an already overstretched and under-resourced judiciary, who were expected to mark advocates’ performance on a lengthy box-ticking form at the same time as conducting the trials during which their performance was being measured — no doubt to the consternation of clients and instructing solicitors, who would presumably prefer their briefs to be focused on the case in hand and the judge to be free of all risk of apparent bias.

We reviewed the ill-fated scheme on this blog (in spite of some opposition from the chair of the BSB at the time) and covered the various setbacks to its implementation in a series of posts, including:

Questions about QASA 

QASA: hit and myth 

The cart, the horse, the nut and the sledgehammer: a review of the QASA Handbook 

Obituaries

Lord Steyn

Lord Steyn has died aged 85. Born in Cape town in 1932, Johan van Zyl Steyn, was son of an eminent Afrikaner law professor and the grandson of one of the founders of Transvaal province. Called to the South African Bar in 1958, he was promoted to senior counsel of the Supreme Court of South Africa in 1970. But he strongly opposed the policy of apartheid and eventually left to practice in London, where he joined chambers at 4 Essex Court. He later became a famously liberal and outspoken judge, critical of executive incursions into human rights and the rule of law.

In 1995 he became a Law Lord and began also to sit in the Privy Council, where (in the experience of this law reporter, when assigned to that court) he contributed a merciful and progressive approach to the hearing of constitutional appeals from former colonies whose legal systems continued to apply the death penalty for murder, and was always among those on the Board who strove most ingeniously to arrive at a construction that avoided the perpetuation of barbarity. Following his retirement in 2005, he returned to his old chambers, now called Essex Court Chambers.

There is a news report and a good obituary in The Times.

There is also a fine obituary in The Independent and a tribute, on the South African website PoliticsWeb, written by Jeremy Gauntlett SC QC of Freedom Under Law (FUL), of which Lord Steyn was the founding Chair of its International Advisory Board.

Sir Martin Nourse

Sir Martin Nourse, who died on 28 November 2017, was well known and liked by the law reporters who covered his courts, who found him unfailingly helpful and courteous. He had practised at the Chancery Bar specialising in trusts, property and revenue cases, before being appointed a High Court judge in the Chancery Division and then a Lord Justice of Appeal in the Court of Appeal. Following his retirement he acted as commercial arbitrator, at One Essex Court.  

There is an obituary on the website of his former chambers, 5 Stone Buildings, where he was deputy Head of Chambers (at its former address, 2 New Square) from 1972 to 1980.  

A memorial service will be held at Lincoln’s Inn on 1 March 2018.

Law (and injustice) from around the world

America

Flynn goes down like a pled zeppelin

Well as puns go, it went. But the point is partly to draw attention to a grammatical difference (one of many) between American and British use of English. We Brits say plead (present tense) and pleaded (past tense, or possibly aorist). They say plead and pled, like lead and led, and NOT like read and read.

The substance of this story is that Michael Flynn, President Trump’s former national security adviser, has reached a cooperation and plea deal with Special Counsel Robert Mueller, who is heading an investigation into allegations that the Russian state colluded with Trump’s team in last year’s US presidential election campaign. Flynn has basically pleaded (pled) guilty to lying to the FBI, and is now cooperating with prosecutors and ready to testify about Russian contacts. It is another riveting development in a long-running saga, which may eventually lead to Trump himself being charged with something, even if it is only obstructing the course of justice. In response to the plea deal, Trump tweeted:

As the Guardian explained (Trump’s tweets about Flynn could show he obstructed justice, say analysts):  

Trump had not previously said Flynn lost his job because of an actual criminal matter, such as lying to the FBI, rather than the political error of lying to vice-president Mike Pence, which was cited at the time. Analysts were quick to point out that if Trump knew Flynn lied to the FBI, his asking then FBI director James Comey to drop the investigation of Flynn would constitute obstruction of justice, one of the issues Mueller is examining. Trump later fired Comey.

Since then, it’s been suggested that Trump’s lawyer drafted the incriminating tweet on behalf of his client, which seems to raise regulatory issues apart from anything else. You also wonder how many other tweets by the president were actually drafted by others.

For more on this story, read

 

France

Royal snaps too Closer for comfort

The criminal Tribunal de Grande Instance in Nanterre, Paris, ruled that France’s Closer magazine, Laurence Pieau (its editorial director) and Ernesto Mauri (the chief executive of its publisher, the Mondadori group) had gravely infringed Prince William and Princess Catherine’s right to privacy and family life when they published topless photographs of the Duchess during their holiday in the South of France in 2012.

The sentence handed down by the criminal Tribunal of Nanterre On Tuesday 5 September 2017 follows the judgment in Nanterre’s civil court in 2012 – later held up by the court of appeal of Versailles in June 2013 – that injuncted the dissemination and broadcast of the offending photographs in whatever form by Closer and other French publications.

You can read a full report of the case, written by Julie de Lassus Saint-Geniès and published by Farrer & Co, on Inforrm’s blog.

Sweden

Remote control rape conviction

A man has been convicted in a court in Uppsala of rape for coercing young teenagers in Canada, Britain and the United States to perform sexual acts in front of webcams. He was sentenced to ten years in prison.

Bjorn Samstrom had threatened to post photos of 26 girls and one boy on pornography sites or to kill their relatives unless they performed sex acts as he watched from Sweden,  The Independent reported, adding that:

while Samstrom never met his victims in person, he was guilty of rape, sexual coercion and other charges. It was the first time in Sweden that a person was convicted of rape for offences that took place over the internet. Under Swedish law, rape doesn’t have to include intercourse, but can be an act considered equally violating.

Interestingly, from a transparency and open justice point of view, it seems that the 20-day trial was held “behind closed doors” (ie in private) to protect the juvenile victims’ identities. Only 18 of the 26 girls had been identified from the material discovered on Samstrom’s computer. They were interviewed and their video testimony played in court, but none were physically present at the trial. So not only were the offences committed virtually or remotely, but the trial of those offences was also conducted in a semi-virtual (and hidden) manner. However Samstrom admitted coercing the teens — all under age 15 at the time — but denied his actions constituted rape. It is presumably on that point that, as the  Mail Online  reports, he has vowed to appeal.

See also this thread from Professor James Chalmers of the univesity of Glasgow via Twitter, which includes a link to the relevant law (translated).

Tweet of the Week

is a bit of good advice for pupils from Mary Aspinall-Miles, a barrister at 12 College Place chambers in Southampton.

That’s it folks! Thanks for following. We’ll have more next week, but in the meantime check out the other posts on this blog and, if you haven’t already done so, try out our fast new case search facilities by clicking on Home or ICLR.3 at the top of the page.

This post was written by Paul Magrath, ICLR blog editor, and does not necessarily represent the views of ICLR as an organisation.

Paul MagrathPaul is Head of Product Development and Online Content at ICLR - the leading supplier of law reports for England and Wales.
Paul Magrath

Paul is Head of Product Development and Online Content at ICLR - the leading supplier of law reports for England and Wales.

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