Weekly Notes: legal news from ICLR — 10 June 2019

In this week’s roundup of legal news and commentary, the criminal bar takes up arms against the slings and arrows of outrageous legal aid cuts, though extra funding is now available to swell the thinning cohort of the senior judiciary; meanwhile Henry VIII appears in full fig in the Online Courts bill and we have updates on recent cases and forthcoming events.

Legal Profession

The Criminal Bar Association announced in its Monday Message dated 7 June 2019 that among their members who voted, 94.90% were in favour of action in respect of Prosecution Fees, and 93.86% in favour of action in respect of AGFS Scheme 11 defence fees. The action proposed (in an earlier Monday Message dated 24 May) is as follows:

  • the first national day of action on 1st July, a whole profession walkout,
  • from 1st July indefinite no returns for prosecution and defence work,
  • thereafter we will hold a National Criminal Justice Summit,
  • then training days around the country in conjunction with solicitor groups; we will invite Judges, politicians and other key stakeholders to discuss key priorities for change in the Criminal Justice System.
  • we will issue protocols and guidance to ensure as far as possible no breach of the code of conduct.
  • we will convene a Heads of Chambers meeting, during the week of 3rd June, with dial in facilities to ensure nationwide participation, to discuss and calibrate future action beyond this.
  • action will escalate in due course if no progress has been made.

That message, from Chris Henley QC, chair, and Caroline Goodwin QC,
vice-chair, accepts that “ There may be criticism of the impact of action on innocent victims, witnesses and defendants. But they are being failed on a daily basis up and down the country already.” It goes on to say:

Many of you, I know, want more than this and immediately. Some argue passionately for a complete downing of tools. This may yet come. But, at present, we have the moral high ground and we need to take the whole profession with us. Every one of us must be ready to make the case at every opportunity against the casual vandalism which currently defines Criminal Justice policy in all areas. We are uniquely placed to take a stand, and have a unique responsibility. We need to use this privileged position wisely, and proportionately.

Complaints about cuts in legal aid, for both barristers and solicitors, have been made for years, in response to cuts imposed by successive governments. There have been forms of industrial action before, and reviews, and a good deal of “briefing” by spokespersons on behalf of the Ministry of Justice, attempting to portray the bar as “fat cats” and the present arrangements as “generous” and the system as a whole as unnecessarily extravagant. But the fact remains that the MOJ’s budget has been cut by more than almost any other government department over the last decade. Last summer a Guardian editorial reported that

Spending on legal aid has shrunk by more than £1bn in five years. By 2019–20 the Ministry of Justice will have seen cuts to its overall budget of 40% — among the deepest of any government department.

Even the massively hyped £1.2bn courts modernisation programme is essentially being paid for, not by new money, but by cuts elsewhere: closures of existing courts and services, selling off buildings for redevelopment, and reductions in staffing. Senior members of the judiciary have become increasingly vocal in their criticism of the cuts, and a book about the problems with the criminal justice system has become a runaway bestseller.

Judiciary

The Ministry of Justice announced last week that it was taking “urgent action” to protect judicial recruitment. Among the “unprecedented recruitment issues in the senior judiciary” were the fact that more than 10% of High Court judicial positions are currently vacant and the Chancery Division, which handles major commercial cases, is already 20% below strength and could be as much as 40% below strength by the end of the year if no action is taken. Moreover, “The impact is already being felt in the family courts, where a shortfall of judges is contributing to significant delays in child care proceedings.”

The current funding boost is an interim measure, because the government has not yet worked out how it is going to respond to the Major Review of the Judicial Salary Structure (Cm 9716) from the Senior Salaries Review Body (SSRB) which last year pointed out that judicial pay packages had effectively been cut by up to 36% over the previous decade, and that

“inadequate administrative and IT support for judges in the courts, a significant increase in workload, inflexible working patterns, inadequate rewards for judges taking on leadership roles, and a large-scale breakdown in trust in the government”

had all affected recruitment. It recommended that High Court judges should be paid £240,000 (a 32% increase), circuit judges £165,000 (a 22% increase) and district judges £117,000 (an 8% increase).

The Daily Mail headlined their report of this: “Where is the justice! Judges set for thumping £60,000 pay rises while hardworking Britons are forced to watch every penny” . The government, instead asking how much some of the journalists on the Daily Mail are paid, rather feebly responded at the time with a miserly 2% increase. The Lord Chancellor said at the time: “Our independent judiciary is the cornerstone of the rule of law, and effective remuneration is critical to the continued attraction and retention of high calibre judges.”

But self-evidently that wasn’t good enough. Recruitment rates continued to plummet and the government has felt the need to do something, without prompting further criticism from the Daily Mail. So it introduced what it called a

temporary recruitment and retention allowance at 25% for High Court judges and 15% for Circuit and Upper Tribunal judges who are eligible for the new pension scheme 2015.

This measure will affect only about a quarter of the salaried judiciary and aims to resolve the immediate recruitment issue until a long-term, sustainable, pension-based solution can be implemented for all judges.

It replaces the existing allowance of 11% for High Court judges and falls below SSRB’s recommendation of a 32% permanent salary increase for High Court judges and 22% for Circuit and Upper Tribunal judges covered by the new pension scheme.

You can read the full (interim) response here: Government response to SSRB major review ( CP 107)

How has the Daily Mail responded? By metaphorically shrieking: “Where is the justice? Top judges will get an inflation-busting 25 per cent pay rise worth £45,000 because the current six-figure salary is not enough to stop them QUITTING”.

See also: Law Society Gazette, Hiring crisis: High Court judges in line for £47k

Courts

You probably know it as the Courts and Tribunals (Online Procedure) Bill, which was published on 1 May in the House of Lords. It begins its committee stage in the upper house today (10 June) but in advance of that the Lords Select Committee on the Constitution last week published a paper (HL Paper 373) distilling some of the criticism drawn out during the second reading debate on 14 May. Lord Judge in that debate said:

Dear old Henry VIII does not lurk around the corner in this Bill; as is the custom nowadays, that ogreish sight is there in full vision — you cannot miss him.

The reason for this henrican allusion is that the Bill provides for an Online Procedure Rule Committee (OPRC) that will be able to make rules governing whatever proceedings are conducted online, as opposed to in a conventional physical hearing space. However, it is left to the “appropriate minister” to specify, by regulations, which proceedings (i) may or indeed (ii) must be conducted online. In most cases the appropriate minister is the Lord Chancellor, but in the case of tribunal proceedings it would be the relevant secretary of state. There is therefore a possibility of a government minister, who need not be a lawyer, specifying by regulation that many, or possibly all, kinds of civil proceedings are to be governed by the Online Procedure Rules. As the Constitutional Committee put it:

“The powers in the Bill could, for instance, be used to compel the use of online proceedings for civil proceedings involving all but very high-value claims, or, even more radically, to compel the use of online proceedings for many, or even all, civil, family, tribunal and employment proceedings. There is therefore the potential under the Bill for significant curtailment of the use of oral hearings.”

The appropriate minister when exercising these powers must consult the Lord Chief Justice and Senior President of Tribunals, but there is no requirement to secure their concurrence. The committee recommends changing that, at the very least. As Lord Judge (who is a member of the committee) put in in debate,

“I venture to suggest that there is absolutely no legislative complication in amending every reference ​to “consultation” in the Bill to “concurrence”. That might help to put Henry VIII back into the naughty corner.”

Given that the inspiration for Lord Briggs’s original proposal for an online court in his Civil Courts Structure Review (2016) was the Civil Resolution Tribunal in British Columbia, Canada, it seems odd that the legislative governance of the court hasn’t followed the model adopted there, ie primary legislation in the form of the Civil Resolution Tribunal Act [SBC 2012] (Chap 25). The CRT was originally set up to deal with small civil money claims, and some housing disputes, but changes to the scope of its jurisdiction have been achieved by amendment of the primary legislation, not by making regulations. Thus claims for motor vehicle accidents have recently been added to its scope. (Regulations then specify in more detail how such claims are processed.)

Case updates

The private prosecution brought by Marcus Ball against Boris Johnson for the offence of misconduct in public office (MIPO), for which permission to issue a summons was granted by Westminster Magistrates’ Court (as we reported last week), has now been halted by the High Court. At the hearing of what has been described as an appeal (perhaps by case stated — otherwise it must have been a claim for judicial review), Lady Justice Rafferty and Mr Justice Supperstone overturned the district judge’s decision. The summonses have been quashed. The Divisional Court (as it’s called when two or more judges sit in the High Court) will give its reasons for the decision later.

See also:

In Weekly Notes on 4 March 2019 we reported how Sally Challen, who in 2011 was sentenced to life imprisonment with a minimum term of 18 years for the murder of her husband, had won an appeal against conviction but was due to face a retrial. We can now report that, since then, the Crown has accepted a plea of manslaughter and decided not to proceed with the retrial for murder. Instead, she has been sentenced to nine years and four months’ imprisonment for manslaughter, for which she has already served sufficient time.

Reporting restrictions, imposed in expectation of a retrial, have been lifted and the judgment of the Court of Appeal has now been released: R v Challen (Georgina) [2019] EWCA Crim 916.

The BBC has toned down its previously sensationalised coverage (with headlines like “Hammer Killer Wife to be retried”). It reported the latest developments under the calmer headline Sally Challen: No fresh trial over husband murder

And for her counsel, a justified success:

Dates and Deadlines

Bournemouth International Centre, 13–15 June 2019

The President of the Supreme Court, Baroness Hale of Richmond, the well known legal commentator David Allen Green, of Prieskel & Co LLP and the FT, Matthew Bell of Legislation.gov, and Paul Magrath of ICLR will be among the many speakers at this year’s conference, which also marks the half-centenary of the British and Irish Association of Law Librarians (BIALL). The conference theme is therefore “50 not out: past, present, future”. For more details see the conference programme.

Carey St, London (start point) — 17 June 2019

ICLR will be fielding a team for this year’s London Legal Walk on 17 June. We are walking with the Lord Chief Justice and thousands of lawyers to raise funds for the London Legal Support Trust which funds Law Centres and pro bono agencies in and around London. We know that these agencies do a fantastic job in preventing homelessness, resolving debt problems, gaining care for the elderly and fighting exploitation.

Do please contribute via our fundraising page.

St John’s Chambers, 101 Victoria Street, Bristol — 25 June 2019, 17:00–19:30

In light of the Legal Blogging Pilot implemented through PD36J, The Transparency Project are running a CPD workshop for lawyers interested in brushing up their ‘transparency’ knowledge — whether with a view to taking part in the scheme themselves, or so they feel better prepared for responding to attendances by legal bloggers or journalists in cases where they are instructed. Click here for booking information.

And finally…

Is from barrister Julien Foster with a rogue typo:

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.

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.