Weekly Notes: legal news from ICLR, 10 May 2021

This week’s roundup includes major new legislation, miscarriages of justice and a dickens of an exhibition. Plus recent case law and commentary.

Legislation

Domestic Abuse Act

Described by the government as “landmark” legislation — and for once the hyperbole may be justified — the Domestic Abuse Act 2021 is one of a number of Bills to have received the royal assent at the end of last month. It has been a long time coming, and subject to wide consultation and lobbying from victims’ groups and family justice campaigners. According to the government’s announcement, “the Government worked closely with the Domestic Abuse Commissioner and charities to make key changes to the bill, ensuring the law is as robust as possible.”

Among the changes announced in the Act are measures creating a new offence of non-fatal strangulation, extending an offence to cover the threat to disclose intimate images, and clarifying the law to further clamp down on claims of “rough sex gone wrong” in cases involving death or serious injury. The Act sets out “a wide-ranging legal definition of domestic abuse which incorporates a range of abuses beyond physical violence, including emotional, coercive or controlling behaviour, and economic abuse”. According to the announcement:

“Police will also be given new powers including Domestic Abuse Protection Notices providing victims with immediate protection from abusers, while courts will be able to hand out new Domestic Abuse Protection Orders to help prevent offending by forcing perpetrators to take steps to change their behaviour, including seeking mental health support or drug and alcohol rehabilitation.”

The Act’s measures also include “important new protections and support for victims ensuring that abusers will no longer be allowed to directly cross-examine their victims in the family and civil courts”, and “special measures … such as protective screens and giving evidence via video link” (something already managed in the criminal courts).

See also: Lucy Reed, Transparency Project: Domestic Abuse Act 2021 — What does it mean for Family Courts and the people using them?

Fire Safety Act

When it was introduced in March last year, the Fire Safety Bill was intended to “ensure that people feel safe in their homes, and a tragedy like the Grenfell Tower fire never happens again”.

The bill would amend the Fire Safety Order 2005 to clarify that the responsible person or duty-holder for multi-occupied, residential buildings must manage and reduce the risk of fire for both the structure and external walls of the building, including cladding, balconies and windows, and entrance doors to individual flats that open into common parts. This clarification would empower fire and rescue services to take enforcement action and hold building owners to account if they are not compliant.

However the Fire Safety Act 2021 as enacted has not resolved the issue of who needs to pay for the remedial work necessary to make buildings safe, in particular the removal of unsafe cladding on multiple occupancy buildings. It was inflammable cladding that caused the Grenfell Tower fire to be so catastrophic. Currently, the burden still rests on leaseholders who cannot afford it and are being refused mortgages which might help them pay for it by reason of the safety issues. A number of amendments proposed by MPs on both sides of the House and in the Lords were ultimately rejected. But the briefing notes to the Bill suggest that “Further changes to fire safety law are expected to follow”.

For more on this see:

Counter-Terrorism and Sentencing Act

Described as “the biggest shake-up of terrorist sentencing and monitoring in decades”, the Counter-Terrorism and Sentencing Act 2021 ends the prospect of early release for anyone convicted of a serious terror offence and forces them to spend their whole term in jail. According to the government announcement:

The most dangerous offenders — such as those found guilty of preparing or carrying out acts of terrorism where lives were lost or at risk — now face a minimum of 14 years in prison and up to 25 years on licence, with stricter supervision.

The Act builds on emergency legislation passed in February 2020, following the terrorist atrocities at Fishmongers’ Hall and in Streatham, which retrospectively ended automatic early release for terrorists serving standard determinate sentences. This forced them to spend a minimum two-thirds of their term behind bars before being considered for release by the Parole Board.

The new laws go further and allow courts to consider whether a much wider range of offences have a terror connection — for example an offence involving the supply or possession of firearms with a proven link to terrorist activity — and hand down tougher punishments. This also ends the prospect of terror offenders being released automatically before the end of their sentence.

National Security and Investment Act

Described as “a Bill to strengthen the government’s ability to investigate and intervene in mergers, acquisitions and other deals that could threaten UK national security”, the National Security and Investment Act 2021 has now also received the royal assent.

According to the government’s announcement, it represents the “Biggest shake-up of UK’s investment screening regime in 20 years” and “will modernise government’s powers to investigate and intervene in potentially hostile foreign direct investment”. The Act

“protects the public from potential risks, and bolsters the UK’s status as an attractive place to invest by providing more efficient clearance processes for relevant acquisitions and more certainty and transparency for investors and businesses.”

Crime

Report on miscarriages of justice

The Westminster Commission on Miscarriages of Justice was established by the All-Party Parliamentary Group on Miscarriages of Justice (APPGMJ) with a brief to investigate the ability of the criminal justice system to identify and rectify miscarriages of justice. It has now concluded its work and published its report In the Interests of Justice.

The report considers the work of the Criminal Cases Review Commission (CCRC) which was set up in 1997 to investigate alleged miscarriages of justice in England, Wales and Northern Ireland. The CCRC has the power to send, or refer, a case back to an appeal court if it considers that “there is a real possibility the court will quash the conviction or reduce the sentence” in that case.

The report finds that this test has tended to make the CCRC too deferential to the courts and recommends, among other things, that there should be a more objective test: it says the CCRC should be “bolder” and should refer a case “if it considers the conviction may be unsafe, the sentence may be manifestly excessive or wrong in law, or that it is in the interests of justice” to make a referral.

The report also finds that “financial constraints and an increased caseload have compromised the CCRC’s ability to carry out its role effectively in all cases”. It recommends changes to the retention of documents and that the CCRC should have additional powers to obtain information and material from public bodies in a timely manner.

The Post Office cases: update

An example of a successful reference by the CCRC was the decision last month of the Court of Appeal in n Hamilton v Post Office Ltd [2021] EWCA Crim 577, quashing of the convictions of 39 sub-postmasters for offences of dishonesty which had been based on the unreliable evidence of the Post Office’s computerised accounting system, as we reported more fully in Weekly Notes, 26 April 2021.

That decision has in turn prompted further developments in what is known as the great Post Office Scandal.

  • Helen Pitcher, who has just been reappointed to chair the CCRC for a term of five years from 1 November 2021, when interviewed by Computer Weekly, was highly critical of the Post Office management, including its then CEO Paula Vennells, saying “If you were the CEO or director, you should have known — and if you didn’t, you were asleep at the wheel.”
  • Perhaps finally acknowledging the inevitable, the Post Office itself announced that it will be contacting 540 more people whom it prosecuted through the criminal courts to assist them with information which may lead to a successful appeal. A further 100 cases are still being reviewed.
  • Lord Arbuthnot, a former barrister who has been helping the sub-postmasters fight for justice for more than a decade, has called for a police investigation into the activities of former Post Office executives saying: “It is high time the police began to take a serious look at whether the Post Office management have been perverting the course of justice.”
  • Two barristers whose involvement in the earlier civil proceedings last year led to the threat of proceedings for contempt of court over the disclosure of documents revealing potential prosecutorial misconduct have been cleared: on 27 April 2021 a differently constituted Court of Appeal decided that barristers Paul Marshall and Flora Page had no case to answer on the issue of contempt of court, which had been raised, but then not pursued, by the Post Office. Page puts her side of the story in a post on LinkedIn: #PostOfficeScandal: The contempt subplot, and some legal twists and turns
  • Meanwhile ITV has commissioned a drama, “People v Post Office”, written by screenwriter Gwyneth Hughes (Honour, Vanity Fair, Dark Angel) and executive produced by Patrick Spence (Adult Material, Marvellous), ITV Studios, Gwyneth Hughes, and Natasha Bondy and Ben Gale (Surviving the Virus, This is our Family) on behalf of Little Gem.
  • The saga is already the subject of BBC documentaries, special reports in Private Eye, a radio series and a website, all of which have been based in whole or part on the dogged reporting of Nick Wallis, who is also writing a book, The Great Post Office Scandal, to be published by Bath Publishing later this year.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.3:

COMPETITION — Abuse of dominant position — Exclusionary effect on market: Royal Mail plc v Office of Communications, 07 May 2021 [2021] EWCA Civ 669; [2021] WLR(D) 266, CA

COMPULSORY PURCHASE — Compensation — Certificate of alternative development: Secretary of State for Transport v Curzon Park Ltd, 06 May 2021 [2021] EWCA Civ 651; [2021] WLR(D) 260, CA

DISCRIMINATION — Sex — Employment: Wisbey v Comr of the City of London Police, 06 May 2021 [2021] EWCA Civ 650; [2021] WLR(D) 264, CA

EXTRADITION — European arrest warrant — Bar to extradition: Szalai v Tribunal of Veszpre, Hungary (Zabolotnyi v Mateszalka District Court, Hungary), 30 Apr 2021 [2021] UKSC 14; [2021] WLR(D) 249; Case details, SC(E)

IMMIGRATION — Leave to remain — Indefinite leave: R (Mahabir) v Secretary of State for the Home Department, 06 May 2021 [2021] EWHC 1177 (Admin); [2021] WLR(D) 258, QBD

INJUNCTION — Interim — Undertaking as to damages: Alta Trading UK Ltd (formerly Arcadia Petroleum Ltd) v Bosworth, 30 Apr 2021 [2021] EWHC 1126 (Comm); [2021] WLR(D) 255, QBD

PRACTICE — Abuse of process — Proceedings brought for improper purpose: Brandt v Comr of Police (Montserrat), 10 May 2021 [2021] UKPC 12; [2021] WLR(D) 267, PC

PRACTICE — Evidence — Norwich Pharmacal order: Stokoe Partnership Solicitors v Grayson (Stokoe Partnership Solicitors v Robinson), 30 Apr 2021 [2021] EWCA Civ 626; [2021] WLR(D) 261, CA

SHIPPING — Charterparty — Time charter: Alpha Marine Corpn v Minmetals Logistics Zhejiang Co Ltd (The Smart), 05 May 2021 [2021] EWHC 1157 (Comm); [2021] WLR(D) 257, QBD

TORT — Cause of action — Deceit; Damages — Measure of damages — Misrepresentation: Glossop Cartons and Print Ltd v Contact (Print & Packaging) Ltd, 07 May 2021 [2021] EWCA Civ 634; [2021] WLR(D) 265, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.3 includes:

A Lawyer Writes: Autistic man may visit sex worker: A Local Authority v C [2021] EWCOP 25,

NIPC Law: Patents: Philip Morris v RAI: Philip Morris Products SA v RAI Strategic Holdings Inc [2021] EWHC 537 (Pat)

RPC Perspectives: Inmarsat Global — Upper Tribunal confirms successor company not entitled to capital allowances incurred by its predecessor on satellite launch costs: Inmarsat Global Ltd v Revenue and Customs Comrs [2021] UKUT 59 (TCC)

Free Movement: Interjacent overstaying may count in 10-year long residence application: Asif (Paragraph 276B, disregard, previous overstaying) Pakistan [2021] UKUT 96 (IAC)

Transparency Project: Discharging a party in a case — without telling them why: In re P (Court of Protection: Discharge of Party) [2021] EWCA Civ 512; [2021] WLR(D) 215

Free Movement: Good character requirement unlawfully applied in Windrush cases: R (Howard) v Secretary of State for the Home Department [2021] EWHC 1023 (Admin); [2021] WLR(D) 241

NIPC Law: The Inquiry — FBT Productions, LLC v Let Them Eat Vinyl Distribution Ltd: FBT Productions, LLC v Let Them Eat Vinyl Distribution Ltd [2021] EWHC 932 (IPEC)

RPC Perspectives: Eastern Power Networks — Court of Appeal confirms that HMRC does not need to close its enquiries: Eastern Power Networks plc v Revenue and Customs Comrs [2021] EWCA Civ 283; [2021] STC 568; [2021] WLR(D) 136

Inforrm's Blog: Case Law, Strasbourg: Behar and Budinova v. Bulgaria: The Rights of Others in Cases of Others, Anti-victim bias in ECHR hate speech law? Budinova and Chaprazov v Bulgaria (Application no. 12567/13)

Law & Religion UK: Ecclesiastical Court Judgments — April (I): In re Christ Church, Fulwood [2021] ECC She 1

Inforrm's Blog: Case Law: Corbyn v Millett, Former Labour leader’s “fact/opinion” appeal dismissed: Millett v Corbyn [2021] EWCA Civ 567

Other recent publications

Experts and the Family Justice System: Widening the Pool

Presentation slides and video now available from the Experts Sub-Committee inaugural event on 25 March 2021, hosted by Mr Justice Williams. It set out some of the recommendations from the final report of the President’s Working Group on Medical Experts (The President of the Family Division Working Group on Medical Experts in the Family Courts — Final Report | Courts and Tribunals Judiciary) and focused on encouraging medical and allied health experts to offer their services to the family justice system.

CBA Interim Response to the Call for Evidence from the Independent Review of Criminal Legal Aid Panel

The Criminal Bar Association submitted its interim response to the Independent Criminal Legal Aid Review last week, and announced that the deadline for submissions has been extended in case Heads of Chambers and members of the Criminal Bar want to provide their own response, if they have not already done so, endorsing the CBA’s document.

From one President to another

Former President of the Family Division, Sir James Munby addresses his views to his successor, responding to the latter’s ongoing Transparency Review. This post on the Transparency Project’s blog records an evidence session on 17 May 2021. Sir James cannot help but have a painfully detailed awareness of the many problems with which he grappled during his own time in office, and though he did much to improve the situation, he is conscious of so much more that urgently needs to be done. The relevant legislation is appended.

Judicial review reform I: Nullity, remedies and constitutional gaslighting

First of a series of posts by Professor Mark Elliott on Public Law for Everyone, reflecting on the Government’s response to the Independent Review of Administrative Law (IRAL). One of the areas in which the Government now appears to wish to go further than the Review relates to the effect of remedies in judicial review cases and associated matters concerning the concept of nullity. Subsequent posts on the blog will address ouster clauses, the notion of judicial overreach and the wider constitutional implications of the Government’s response.

Dickens’ Legal World Exhibition

From May to August 2021, Middle Temple Library will be hosting its newest exhibition: Charles Dickens’ Legal World. Originally intended to coincide with the 150th anniversary of Charles Dickens’ death in 2020, the exhibition was rescheduled due to the coronavirus pandemic. The exhibition focuses on Dickens’ employment and engagements in the legal world, including his admission to The Honourable Society of the Middle Temple in 1839 as a student. Those unable to see the exhibit in person can also enjoy an online presentation of the exhibit.

And finally…

Tweet of the week

is from Berlin, an illuminated Brandenburg concerto of grateful remembrance, marking VE day, end of the Nazi nightmare.

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.

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.