Weekly Notes: legal news from ICLR, 10 January 2022

Jury — image via Shutterstock.

Crime

Jury trial and error

Two recent cases on opposite sides of the Atlantic have raised questions about the role of the jury in criminal trials. Over here in the UK, more specifically England and Wales, a jury in Bristol which acquitted four defendants, Milo Ponsford, Sage Willoughby, Rhian Graham and Jake Skuse, who had been charged with criminal damage over the toppling and immersion in the harbour of a statue of Edward Colston, has been accused of acting “perversely” — prompting the Attorney General to consider making a reference on a point of law to the Court of Appeal (under s 36 of the Criminal Justice Act 1972).

Meanwhile in the United States, the conviction in a federal court in New York of Ghislaine Maxwell for five offences, including sex trafficking of a minor, is likely to be appealed against on the grounds of mistrial, owing to the alleged failure by one or more jurors to declare in advance their experience of child sexual abuse, discussion of which is said to have influenced the jury’s deliberations and thereby affected the outcome of the trial.

While the institution of jury trial in the US and the UK has a common origin, and is said to be enshrined in the common law by Magna Carta, there are certain differences in the way it is managed. In England & Wales, it is now rare for jurors to be questioned in advance of the trial about their views on relevant issues, or for either prosecution or defence to object to particular jurors; whereas in the US such pre-trial examination (known as the “voir-dire”) is not uncommon. (In England & Wales, “voir-dire” refers to a preliminary assessment of proposed evidence, not jurors, and is usually conducted in their absence.) Moreover, in most jurisdictions in the United States a number of peremptory challenges against individual jurors are still permitted whereas in England & Wales they have been abolished. Any challenge must therefore be “for cause”, or justified by reference to some relevant consideration.

For these reasons, while the jurors in the Maxwell case might have been questioned in advance about their attitudes to certain matters, and were apparently required to complete a questionnaire one of whose questions referred to prior experience of abuse, in the case of the Colston Four the jurors were not asked about their attitude to, for example, slavery, or their belief in the woke interpretation of history. (They were only questioned to make they didn’t know anyone in the case and weren’t associated with any organisation which might feature.) Moreover, they would be prohibited from discussing the case after being discharged, whereas the New York jurors seem to have been allowed or even encouraged to speak on the public record about their deliberations.

Suffice it to say, we do not appear to support or believe in what might be called jury transparency in this jurisdiction. We treat the jury as a sealed box, into whose workings we shrink from inquiring, lest the entire system of jury trial and all the faith and trust we place in it be irreversibly unravelled, bringing into question and tainting with uncertainty every previous conviction (and acquittal).

Further reading:

Human Rights

Was reference to Strasbourg ‘half baked’?

A reference to the European Court of Human Rights in Strasbourg in the so-called ‘Gay Cake’ case was rejected as inadmissible on the grounds that the applicant, Gareth Lee, had not fully exhausted domestic remedies in relation to the human rights issues. The case arose out of the refusal of Ashers Baking Co Ltd to complete Lee’s order for a bespoke cake displaying a message (“Support gay marriage”) to which the owners of the bakery objected on religious grounds. Lee got the cake from another baker but complained that he had been discriminated against on the grounds of his sexual orientation.

He won in the county court and in the Court of Appeal of Northern Ireland: Lee v Ashers Baking Co Ltd [2016] NICA 39; [2016] HRLR 22. But that was reversed by the UK Supreme Court [2018] UKSC 49; [2020] AC 413, held (inter alia) that the bakers’ refusal to ice the cake with the message was based on their objection to the message, regardless of who the customer was, and they had not treated Lee any less favourably by reason of his sexual orientation; moreover, their rights to freedom of thought, conscience and religion and freedom of expression, guaranteed by articles 9 and 10 of the Human Rights Convention respectively, included the right not to be forced to express an opinion with which they disagreed.

Having won in the lower courts and then lost in the Supreme Court, Lee, who had been supported by the Equality Commission for Northern Ireland, referred the matter to the Strasbourg court, essentially on the basis that the respondent United Kingdom had failed to protect his human rights in accordance with the Convention. He relied on article 8 (right to private and family life), article 9 (freedom of thought and religion) and article 10 (freedom of expression) together with article 14 (enjoyment of such rights without discrimination). But the court, in Gareth Lee v United Kingdom (Application No 18860/19), ruled the complaint to be inadmissible, saying (in its press release):

The Court reiterated that in order for a complaint to be admissible, the Convention arguments must be raised explicitly or in substance before the domestic authorities. The applicant had not invoked his Convention rights at any point in the domestic proceedings. By relying solely on domestic law, the applicant had deprived the domestic courts of the opportunity to address any Convention issues raised, instead asking the Court to usurp the role of the domestic courts. Because he had failed to exhaust domestic remedies, the application was inadmissible.

It is not uncommon for the Strasbourg court to refuse to take cases on the grounds that domestic HR remedies have not been fully explored, but some commentators have suggested that far from being a half-baked application the real metaphor here would be ‘hot potato’, ie a reluctance to get involved in something controversial just when (see below) the domestic parliament is re-examining its human rights legislation. In any case it has other fish to, er, fry.

Further reading:

Legislation

Police, Crime, Sentencing and Courts Bill

This baggy monster has acquired yet more bits and bobs. The government has announced “new measures targeted directly at keeping women and girls safer” including an extension of time within which to report and prosecute instances of domestic abuse amounting to common assault or battery, and a new breastfeeding voyeurism offence punishable by up to two years in prison.

Breastfeeding has been in the news because of discussions about the appropriateness of doing it in the House of Commons, and the Speaker’s decision to allow it. The existing voyeurism offence known as upskirting (see Voyeurism (Offences) Act 2019) deals with non-consensual photography of genitals or buttocks under clothing but the new provision will deal with non-consensual photography of breasts exposed in the course of breastfeeding, where the purpose is to obtain sexual gratification or to cause humiliation, distress or alarm.

The Bill has come under renewed scrutiny recently because of its provision to increase the maximum sentence for the damage of memorials to 10 years’ imprisonment, regardless of the cost of the damage. It means that far more cases of damage to memorials would need to be tried by a jury, rather than being “triable either way”, which in the light of the Colston statue case (see above) may actually result in more such cases ending in acquittal.

Courts

Justice data

Last month HM Courts and Tribunals Service published their own research into user experiences of remote hearings: Evaluation of remote hearings during the COVID 19 pandemic. The report analyses responses to surveys conducted between May and October 2020 with public users of the justice system and in mid-2021 with professionals such as lawyers, judges and court staff. The report has been compiled by Janet Clark, Senior Evaluation Researcher (HMCTS). A summary of its findings has been published on the Transparency Project blog: Remote hearings: the HMCTS evaluation.

Also on the Transparency Project blog, a helpful summary by Judith Townend of justice system data more generally in 2021 and some developments to look forward to: Justice system data in 2022: New year reflections and resolutions

This includes the Transparency Review in the family court, which has resulted in the establishment of a Transparency Implementation Group (TIG). The minutes of its initial meeting on 15 December 2021 have now been published on the Judiciary website. The minutes refer to the intention to create a dedicated TIG page on this website, where minutes and other documents can be published. In other words, full transparency.

Media and Entertainment

A Very British Scandal

It wouldn’t be Christmas without a prime time BBC television series depicting an historical (and preferably also hysterical) scandal involving dramatic court confrontations. We’ve had the Thorpe trial (BBC: A Very English Scandal, ) and we’ve had the Profumo affair (BBC: The Trial of Christine Keeler) so naturally enough, digging still deeper into our easily scandalised past, we had to have the Argyll divorce case: A Very British Scandal. (Why not A Very Scottish Scandal? Perhaps because so much of it takes place in London.)

The case is a good demonstration of the opposite of “no fault” divorce: a hard fought defended petition based on allegations of adultery involving evidence which, while it should not have been reported at the time (under the Judicial Proceedings (Regulation of Reports) Act 1926), appears to have got out anyway. The most famous bit of evidence was a polaroid photograph of a sex act involving the duchess and a man who could not be identified because his head was not in shot, but which on the evidence of pubic hair patterns was not her husband. The whole story was the subject of a splendid and spectacular opera, Powder Her Face, by Thomas Ades with libretto by Philip Hensher, first performed (in my presence) at the Almeida Theatre in 1995. The new TV version is not the first time the story has been served up as Christmas fare: Channel 4 made a version of the opera for broadcast on Christmas Day 1999.

Dramatically, the BBC version is less modernist than the opera, less explicit and stylistically rather retro, with opening credits and swinging music that recall early Sixties movies. Claire Foy plays Margaret Campbell, Duchess of Argyll, with lots of pouting in pearls and Paul Bettany plays the Duke as her devious and vindictive nemesis. Neither character is particularly likeable or sympathetic, and the drama unfolds at a rather leisurely pace. It could do with some robust case management perhaps.

The divorce proceedings in the third and final act take place at the Court of Session in Edinburgh before a stern moralistic judge, Lord Wheatley, who concludes that “Her attitude to the sanctity of marriage was what moderns would call ‘enlightened’ but which in plain language was wholly immoral.” The drama appears to show press reporters slavering over their notebooks at the scandalous revelations, which seems a bit of dramatic licence given the prohibitory effect of the 1926 Act. The case was later the subject of English confidentiality proceedings after the Duke, now divorced, threatened to publish secret information relating to their marriage in the newspapers: see Duchess of Argyll v Duke of Argyll [1967] Ch 302, [1965] 2 WLR 790. It seems hard to imagine there would have been much to this action if all the detail had already emerged in the press. Nowadays, while her sexual activities would probably not raise many eyebrows, the use of the polaroid snaps by an ex-partner would surely be condemned as “revenge porn”.

For more on the 1926 Act and its effect in this and other cases, see David Burrows, Family law: ‘Injury to public morals’ — 2018 style

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

AIRCRAFT — Carriage by air — Compensation and assistance to passengers:

CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Special jurisdiction: Mahmudov v Sanzberro, 17 Dec 2021 [2021] EWHC 3433 (QB); [2022] WLR(D) 5, QBD

COSTS — Assessment — Discretion of court: King v Kings Solutions Group Ltd, 17 Dec 2021 [2021] EWCA Civ 1943; [2021] WLR(D) 635, CA

HOUSING — Assured tenancy — Claim for possession: Metropolitan Housing Trust Ltd v TM, 20 Dec 2021 [2021] EWCA Civ 1890; [2021] WLR(D) 639, CA

IMMIGRATION — Leave to remain — Indefinite leave to remain: R (Afzal) v Secretary of State for the Home Department, 17 Dec 2021 [2021] EWCA Civ 1909; [2021] WLR(D) 637, CA

INTERNATIONAL LAW — Recognition — Head of state: Deutsche Bank AG London Branch v Receivers Appointed by the Court, 20 Dec 2021 [2021] UKSC 57; [2021] WLR(D) 638, SC(E)

PRACTICE — Claim form — Service out of jurisdiction: Aelf MSN 242 LLC v De Surinaamse Luchtvaart Maatschappij NV DBA Surinam Airways, 21 Dec 2021 [2021] EWHC 3482 (Comm); [2021] WLR(D) 643, QBD

TRADE MARK — European Union trade mark — Pending proceedings: Easygroup Ltd v Beauty Perfectionists Ltd, 17 Dec 2021 [2021] EWHC 3385 (Ch); [2022] WLR(D) 7, Ch D

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

Free Movement: Ex-partners don’t retain EU law residence rights after domestic abuse: Singh (EEA, EFMs) [2021] UKUT 319 (IAC), UT (IAC)

NIPC Law: Trade Marks — Re FOOTWARE, Puma SE v Nike Innovate CV [2021] EWHC 1438 (Ch), Ch D

Law & Religion UK: The Great Strasbourg Bake Off: Lee v United Kingdom (Application no 18860/19), ECtHR

RPC Perspectives: Is your phone tracking you? Perhaps, but it is a mere witness to your whereabouts according to the Court of Appeal: EUI Ltd v UK Vodafone Ltd [2021] EWCA Civ 1771, CA

Inforrm's blog: The Duchess and the tabloid: The Mail admits it’s beaten: HRH Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810; [2021] WLR(D) 610, CA

Transparency Project: Authorities seeking to silence families? PH & Anor v Brighton And Hove City Council [2021] EWCOP 63, Ct of Protection

UK Supreme Court Blog: New Judgment: Attorney General v Crosland [2021] UKSC 58, SC(E)

UK Police Law Blog: The investigative duty and ‘historic’ allegations — when is the duty engaged? In re McQuillan [2021] UKSC 55; [2021] WLR(D) 640, SC(NI)

Other recent publications

A finding of rape

Slow newscast from Tortoise Media in which Louise Tickle explains how a former government minister abused the secrecy of the family courts in an attempt to hide the truth, and reveals the shocking tale of family sex abuse and her battle to publish a fact-finding court judgment, which reached the Court of Appeal in Griffiths v Tickle [2021] EWCA Civ 1882.

The best law books of 2021 — from the Post Office scandal to murder at the Old Bailey

Collection of reviews in The Times of major law-themed books including The Great Post Office Scandal by Nick Wallis reviewed by Paul Magrath, and Spider Woman: A Life by Lady Hale reviewed by Frances Gibb.

Charles Dickens as copyright content influencer: how the turkey became the holiday bird of choice

Post on the IPKat blog about the effect of A Christmas Carol in promoting Dickens as a Christmas celebration influencer, notably in relation to the rise of the turkey as the preferred bird to mark the holiday feast, and how he ultimately benefited from the wider distribution of the novel in breach of copyright restrictions, despite a futile court claim.

Review of 2021 (1): opening lines of judgments: costs, brass, muck, unhappy families and … archangels

First of three-part annual review by Gordon Exall on his Civil Litigation Brief blog contains a roundup of opening lines of judgments found on BAILII. Second and third parts of his review are also out:

Not a Great Year for Prison Reform

Prison reformers are nothing if not optimists, says Rob Allen on the Unlocking Potential blog, but 2021 won’t be remembered as a great year. He provides a brief survey of the current prison estate and how it might fare against dismal predictions of future demand on the system. But “while a future with more and more prisoners is looking likely, it isn’t inevitable” he concludes.

Free Movement review of the year 2021

Colin Yeo on the Free Movement blog offers a review of immigration and asylum law and policy over the last year. Despite the shambles of Home Office policy, hostile news coverage of small boat channel crossings and problematic new legislation, it’s not all bad: “This will seem counter-intuitive to many readers, but there is an argument to be made that the asylum system is much better for refugees now, at the end of 2021, than it was prior to 2010.”

The Government’s New Proposals for the Human Rights Act; Part One — The Proposals in Outline

Richard Clayton, on the UK Constitutional Law Association blog, provides further commentary on the government’s proposed changes to the Human Rights Act 1998 and its proposed new Bill of Rights.

Dominic Raab must not squander his chance to spend on improving information

Article in The Times by Natalie Byrom on why the justice secretary must prioritise spending on data, otherwise policy will keep being made blindfolded. “Investing in data is not a distraction from the crisis facing the courts”, she argues, “it is central to solving it”.

Chaos at the Capitol: The Anniversary of the January 6 Capitol Attack

On the anniversary of the catastrophic event, the HeinOnline Blog looks back at the impact of the Capitol attack with the extensive related content such as government documents and scholarly commentary that users can find within HeinOnline.

And finally…

Tweet of the week

is from Katie Gollop with some New Year’s Resolution suggestions for all those remote hearings we are still having:

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Keep safe and well.

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.