Weekly Notes: legal news from ICLR — 10 December 2018

Amal Clooney at Press behind bars event during 73rd United Nations General Assembly in New York, September 2018.

Human Rights

TrialWatch project to monitor abuse of justice systems

The Clooney Foundation for Justice, working with the Columbia University Law School and the American Bar Association, have launched the TrialWatch project to limit the use of the courts as a tool of oppression around the globe.

“Sunlight is the best disinfectant” (as US Supreme Court justice Louis D Brandeis famously observed) and, with some exceptions, we take open justice and transparency largely for granted in our own jurisdiction. But in many overseas jurisdictions, say the Foundation,

“a judge’s rulings can be purchased by the highest bidder. Judges can also be complicit in grave human rights abuses when they convict for ‘crimes’ such as homosexuality or blasphemy, or when they ignore the due process rights of defendants.”

The Clooney Foundation aims to curb the tendency of oppressive regimes to harness the courts to their bidding by monitoring “trials in which the law may be used to target a minority or silence a government critic”. In particular, the project with focus on

“trials involving journalists, government critics (such as opposition figures or human rights defenders), LGBTQ persons, women and girls, and religious minorities.”

Not all trials are open; and even when open, watched. So the project plans to develop a consistent and comprehensive programme of court monitoring, which will keep justice under scrutiny and inhibit its abuse.

The Clooney Foundation for Justice was launched by Amal Clooney, a barrister of Doughty Street chambers, and her husband George Clooney, the actor, in 2016. According to Reuters,

“She currently is a member of the legal team representing Reuters journalists Wa Lone and Kyaw Soe Oo, who were detained last year by Myanmar authorities while investigating the killing of 10 men and boys of the Rohingya minority during a military crackdown.”

Family law

Transparency guidance

One of the areas in which the courts are sometimes less open than they might be in our own jurisdiction is where they are dealing with family law, particularly in cases involving children. While most such cases are still heard in private, a lot more judgments are being published in response to a judicial drive for greater transparency. Such publication can be problematic, however. One of the risks is that, even when names have been anonymised, children can still be identified by reference to other details left in the judgment.

The President of the Family Division, Sir Andrew McFarlane has now issued and approved draft guidance on the anonymisation of judgments involving children, which is designed to minimise the risk of identification of children. It also makes recommendations on how descriptions of sexual abuse can be presented in judgments with a view to protecting children from the dissemination of distressing material on the internet or social media.

The guidance was drawn up by Dr Julia Brophy in a 2016 report, jointly funded by the Nuffield Foundation and the Association of Lawyers for Children, building on views expressed on transparency in the Family Court by a National Youth Advocacy Service (NYAS) panel of young people. After it was published, the then President, Sir James Munby had to issue a clarification to correct the assumption that it had been officially adopted. Nevertheless, the likelihood of it or something similar being adopted in some form seemed strong and the delay probably owed more to the volume of matters awaiting Sir James’s attention, than to any reluctance on his part to approve it. (If he had second thoughts about it, as some other members of the judiciary seem to have done, his successor does not seem to have shared them.)

There is further discussion of the guidance in Doughty, Reed and Magrath, Transparency in the Family Court (2018), chapter 8.

There is also a useful guidance note for families and professionals published by the Transparency Project on the topic: Publication of Family Court Judgments (which includes a checklist tool for people who are involved in anonymising a judgment or checking a draft before publication).

Brexit

Commons committee’s negative verdict on the deal

The House of Commons Select Committee on Exiting the European Union has, perhaps not surprisingly, come out unanimously against the deal and the political declaration which the Prime Minister Theresa May is putting to a parliamentary “meaningful” vote on Tuesday 11 December: Brexit Committee’s united verdict on the Prime Minister’s deal: Uncertainty, not clarity

Over the weekend there were further rallies both by those in favour of Brexit, including a contingent from Ukip, and those against it, or in favour at least of a second vote on the matter. Thousands here, thousands there, according to the news. None of this will likely affect the way Parliament votes when the time comes, since most of those who oppose the deal — from both sides — will not have been persuaded to change their minds by the sight of the Prime Minister and some of her more loyal Cabinet colleagues rushing round the country to meet “the people” and report back on their alleged impatience to see the deal implemented. In short, the deal is a fudge which is no better for being rushed, and it seems likely that by next week we will be discussing the various options for the way forward in the wake of its collapse. Thanks to the Grieve Amendment which was carried last week, the matter will be subject to a further parliamentary vote.

This followed an earlier vote on the same day whereby Parliament held the government in contempt for not having published the Attorney General Geoffrey Cox QC’s advice on the Irish backstop arrangements in the Withdrawal Agreement. The advice was duly published and reflected pretty much what Cox had already told the House, and what was already in the 585- page agreement if people chose to read it carefully.

UPDATE: In the case of Wightman and Others v Secretary of State for Exiting the European Union (Case C-621/18) the European Court of Justice has today confirmed the opinion of the Advocate General that “The United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU”. More to follow in due course.

Immigration

Settled and pre-settled status for EU citizens and their families

The government has issued new guidance — or reassurance (whatever that is worth, coming from the same source as the hostile environment, Windrush scandal etc) — as to the future status of European citizens in the wake of the UK’s withdrawal from the European Union (whatever form that takes).

The EU Settlement Scheme will open fully by 30 March 2019. If you’re a European Union (EU) citizen, you and your family will be able to apply to get either settled or pre-settled status. The deadline for applying will be 30 June 2021. You will not need to apply if you’re an Irish citizen, or you have indefinite leave to remain in the UK or indefinite leave to enter the UK. Your family members from outside the UK and Ireland will still need to apply even if you do not need to.

Rights for citizens of Norway, Iceland, Liechtenstein and Switzerland are still being negotiated.

Music and law

Sound and fury — orchestral manoeuvres in the dock

In Goldscheider v Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB) an orchestral viola player won damages for acoustic shock from the Royal Opera House after suffering injury in the form of hearing loss after being seated in front of an extended brass section during a rehearsal of Richard Wagner’s Ring Cycle operas. Nicola Davies J found the opera house liable and ordered damages to be assessed. The case has sent (acoustic) shockwaves through the industry, and an appeal by the opera house will be heard next year, so this crescendo may not be the finale.

Last week the case was the subject of a discussion at King’s College London, Acoustic shock: where law meets aesthetics, chaired by Professor Alan Read, with Theo Huckle QC, Chris Fry of Fry Law, Dr Aoife Monks of Queen Mary University of London, Dr Lucy Finchett-Maddock of the University of Sussex, and Dr Colm McGrath of King’s College London. (Huckle acted for Goldscheider, instructed by Fry, in the case.)

Isobel Williams was there and has written about the event for her Drawing from an Uncomfortable Position blog: Orchestra management fails to score.

“We are told this evening that orchestral musicians face a 40% chance of significant hearing loss; and it is not always explained to players that, if you don’t wear hearing protection for ten per cent of the time, you lose a substantial part of any protective benefit.”

The problem in the music industry is that — a bit like the problems which gave rise to the #MeToo movement in relation to the film industry — power is concentrated in the hands of the few, mostly male, prime movers and institutions, and for the players who support the star turns it is literally a gig economy with very low job security. Given that precariousness, it is not surprising that:

“There are, it seems, no orchestral musicians here tonight. That’s a shame, but they don’t want to make waves in an insecure, clannish industry where much work is freelance and the power is in the hands of promoters, conductors and fixers.”

Williams describes the way orchestral players are consigned by their instruments to tribal patterns of expected behaviour. Much of this is amusingly anecdotal, or prejudiced. The great slogan of the Musicians’ Union is ‘keep music live’ and it would be a great shame if the only solution to the problem of acoustic shock is to reduce the opportunities for working musicians (as perhaps they fear). On the other hand, the litigation may prompt a reappraisal by the management of their responsibilities and encourage them to find a solution.

For more about acoustic shock cases, see BC Legal, Acoustic Shock: an update

For the Musicians’ Union’s advice, see Noise Regulations and You

Data protection

Police’s gangs database broke data protection law

An investigation by the Information Commissioner into the Metropolitan Police Service’s Gangs Matrix has revealed serious breaches of data protection laws. The database records intelligence related to gang members but, the report found,

“whilst there was a valid purpose for the database, the way it was being used across Boroughs failed to comply with data protection laws and the Met’s own rules.

The Matrix can be shared with local councils, housing associations, and education authorities. And when shared, simply being on this database could lead to denial of services and other adverse consequences. Data sharing between the police and other public bodies is necessary, but in this case and all cases, that must be done within the law.

The ICO has accordingly issued an Enforcement Notice, ordering the Met to make significant changes to the ways in which it uses the Matrix to bring it into compliance with data protection law.

Sleigh-ing the Christmas GDPR myths

The ICO blog also has an explainer on some of the myths about GDPR and how it might affect your holiday plans. It quotes the jingle that’s been doing the rounds on social media:

“He’s making a list,
He’s checking it twice,
He’s gonna find out who’s naughty or nice…

Santa Claus is in contravention of Article 4 of the General Data Protection Regulation (EU) 2016/679.”

Some of the myths do sound a bit ridiculous (Christmas cards are banned if you don’t have the recipients’ consent) but some less so (You can’t contact parents to tell them what stall they will be running at the school Xmas Fayre because you don’t have their express consent). In short, you don’t always need consent; you just need a lawful basis, which includes a legitimate basis.

Media law

New Leveson Inquiry resource

Finally, for anyone interested in researching the first part of the Leveson Inquiry, the Journalism Department at Kingston University, in a project led by Professor Brian Cathcart, have launched Discover Leveson.

Two years in the making, Discover Leveson is a new, fully searchable and freshly curated online public archive, ensuring that any reader, from the professional to the casual, can now tap into this rich resource easily and even enjoyably. In this way, the efforts of the Inquiry and of those who gave evidence will not be wasted, and there is a greater chance that its primary mission — learning lessons for the future regulation of journalism — will be fulfilled.

Although the original Leveson Inquiry website has been preserved by the National Archives, it was “structured according to a logic that made sense for a live inquiry” and was no longer suited to ongoing research. The material on Discover Leveson has been organised around themes including Law, Regulation, Journalism and society, Ethics and abuses, and the Police. All the witnesses are listed and you can both watch their live testimony and read their evidence.

A simple example of the much better way the new site works is that you can find and view the video recording of the session featuring a particular witness, and see their written testimony, all from the same page; on the archived official site, they are stored separately (though linked) and you need to know which session they appeared in before you can find, somewhere in the midst of it, that particular half-day’s video recording. (It’s not even clear that those video recordings are still accessible, though you can read the transcript.) Moreover, the video recording on Discover Leveson is linked to a scrolling display of the full transcript underneath. The pages are also clearly laid out and well designed. In short, the site more than lives up to the promise that it can be used “easily and even enjoyably”.

Tweet of the Week

depicts the Justices of SCOTUS, apparently waiting their turn at the hairdressers.

That’s it for this week! Thanks for reading. Watch this space for updates.

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.

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.