Weekly Notes: legal news from ICLR — 11 March 2019

This week’s roundup of legal news and commentary includes legal aid from a litigation funder; a blame game over knife crime; proposals to create a super-regulator of digital communications, and to deal with online contempt of court; and an update on the Grenfell Tower inquiry.

Image ‘Money’ by Pixabay, via Pexels

Legal Aid

Therium Group Holdings Ltd, a litigation funder based in Jersey in the Channel Islands, has marked its ten-year anniversary by setting up a special pro bono fund called Therium Access. Worth £1m a year, it will “provide access to justice to those who lack the funds necessary to pursue or defend claims, as well as to projects that seek to improve access to justice.”

Over the last decade Therium has funded claims with a total value exceeding £34bn including, it says, “many of the largest and most high profile funded cases in the UK”.

Unlike legal aid, litigation funding is done with an eye to reward — a cut of the damages. But not all cases are successful, so there is an element of risk. But in principle it is a profit-based business model. (For more information, see the website of the Association of Litigation Funders, of which Therium is a member.) The Financial Times points out that:

“Most litigation funders — which finance lawsuits in return for a slice of any compensation — that have been set up in the past 15 years are privately owned and backed by institutions, such as hedge funds. A handful, such as Burford, are stock market listed. They have attracted billions of pounds of investment capital.”

Now Therium wants to help support those whose cases might not be financially rewarding. Making the announcement, John Byrne, co-founder and CEO of Therium Capital Management Ltd, said:

“We are delighted to announce the launch of Therium Access, which is dedicated to improving access to justice by providing not-for -profit litigation funding for cases and projects of public interest.dedicated to improving access to justice by providing not-for -profit litigation funding for cases and projects of public interest”.

Lord Falconer, former Lord Chancellor, Secretary of State for Constitutional Affairs and Secretary of State for Justice will chair the fund’s Advisory Committee. He said:

“The choking of legal support that we have witnessed in this country as a result of unprecedented cuts to legal aid has had drastic consequences on the vulnerable who are being denied access to justice, and on those individuals and organisations who work tirelessly to support them. The not-for-profit funding that Therium Access will provide through grants for cases and projects is urgently required to make some contribution towards restoring the right to legal support, which is the bedrock of our justice system.”

The first grants will be announced in April. The deadline for the submission of the next round of grant applications is 30 August 2019. Applications need to be made by legal representatives or the entity seeking a grant.

The announcement also made clear the breadth of Therium’s plans for the future, saying “Therium Access is intended to be a global initiative”, and although “its initial focus will be on the UK” it will eventually be “rolled out in other jurisdictions in a number of planned phases”.

Crime

A debate has been raging over the causes and cures of what has been characterised as an epidemic of knife crime in recent weeks, following a number of high profile killings of teenagers in various parts of the country. Previously, the problem was associated mainly with London.

The Daily Mail over the weekend published an article (Judges with blood on their hands) blaming the judiciary for over-lenient sentencing of ‘thugs’. But that seems a crudely simplistic analysis, which in any event blames judges for exercising a discretion over sentencing which has steadily been eroded, by legislation and guidelines, and may before long be more consistently managed by way of a sentencing code (as proposed by the Law Commission). It also fails to take account of the growing prison crisis and proposals to deal with it, which militate against repeated short sentences (revolving door justice) for offenders who may be dealt with in other ways, including a plan to abolish sentences of less than six months’ imprisonment altogether. According to the Mail

“soft justice is fuelling Britain’s knife crime crisis, as dangerous youths are given the message they can carry on wounding and terrifying people with impunity.”

The article explained how

Under a law introduced in 2015, anyone over 16 convicted of a second weapon possession offence is meant to be locked up for a minimum of six months. But the latest figures show that just 45 per cent of the 384 under-18s convicted under the ‘two strikes’ law in 2018 were put behind bars, down from 53 per cent the year before.

The Justice Secretary David Gauke faces a difficult choice. He and his prisons minister Rory Stewart have been doing their best to cope with a massive prisons crisis, caused in large measure by overcrowding and underfunding of the prison service. A crisis in probation services, particularly those dealing with lower level offenders, which were privatised by Gauke’s predecessor as Lord Chancellor, Chris Grayling, in a process than has proved expensively disastrous (see Russell Webster’s infographic, 10 Shocking Facts About the Probation Reforms) has not helped matters. A proposal to abolish short prison sentences would have helped (but only if offenders were properly managed after release). But then it turns out that many knife-wielding thugs get just this kind of sentence. Or don’t. Obviously if they commit a murder, they will get life imprisonment. The problem is the much larger number simply being found in possession of a knife, which might be only for their own self-defence. How useful or justifiable is it to lock these people up for a few months? According to The Times (Knife crime: David Gauke in retreat over abolition of short sentences):

“ Gauke is examining whether to exempt knife attackers from his proposals to ban jail terms of under six months. Downing Street officials expressed concern about the consequences of his attempts to cut the prison population. Ministry of Justice figures show that 59% of all knife criminals in England and Wales received jail terms of six months or less last year — 4,300 offenders.”

The causes of the knife crime epidemic, if such it is, are unlikely to be as simple as a matter of not locking up enough young thugs. Obviously the Daily Mail thinks so, and has chosen to blame the judiciary. But most commentators have looked more widely, pointing at the massive cuts in police numbers, as well as cuts to local authority funding which has led to virtual disappearance of youth services around the country. But in any case, Gauke does not agree that sentencing has got softer. In an earlier interview he told The Times:

“Compared to where we were ten years ago we are more likely to send somebody to prison for a knife crime than was the case before and if they go to prison they are serving longer sentences than was the case before, so whatever the cause of the increase in knife crime that we have seen in the last year or two it is not because sentences have got softer…”

Knife crime has led to extra funding for community based projects as we reported recently (Weekly Notes, 25 February 2019), though this feels more like a prevention than a solution. The problem and its causes have received a lot of coverage recently, of which the following is only a selection:

Nick Cohen, The Guardian, Only in Tory fantasy land does knife crime have nothing to do with austerity

Penelope Gibbs, Transform Justice, Knife crime: can we save the lost boys?

Russell Webster, Community scrutiny of stop and search (about a new report from the Criminal Justice Alliance arguing for community scrutiny of local police stop and search practices, which are one of the ways of dealing with knife crime)

BBC One, to be broadcast on 21 March: Stabbed: Britain’s Knife Crime Crisis (a personal exploration of the problem by Duwayne Brooks, the friend of Stephen Lawrence who was with him when he was stabbed to death in the notorious attack by a racist gang in 1993)

Gary Younge, The Guardian, Teenagers are being killed. But more policing is too simple an answer

Media law

The House of Lords Select Committee on Communications published its report, Regulating in a digital world, in which it set out the 10 principles which it said should

“guide the development and implementation of regulation online and be used to set expectations of digital services. These principles will help the industry, regulators, the Government and users work towards a common goal of making the internet a better, more respectful environment which is beneficial to all. They will help ensure that rights are protected online just as they are offline. If rights are infringed, those responsible should be held accountable in a fair and transparent way.”

The report examines two overarching issues: (i) the concentration of internet services into the hands of a small number of companies and (ii) the ethical principles of designing internet technology. It then considers the role of online platforms in dealing with online harms, and explores how to regulate for the future, having explained the ten principles on which that should be based, namely:

  • Parity
  • Accountability
  • Transparency
  • Openness
  • Ethical design
  • Privacy
  • Recognition of childhood
  • Respect for human rights and equality rights
  • Education and awareness-raising
  • Democratic accountability, proportionality and evidence-based approach

The report recommends the establishment of a new body, the Digital Authority, politically impartial and independent of the Government, to co-ordinate regulators in the digital world. It would also be charged with the task of “horizon-scanning” to spot new trends, dangers and other developments, with a view to keeping regulators fully up to speed in their tasks.

See the Summary of Conclusions and recommendations.

For background, see a survey of the evidence, via Inforrm’s blog, by Oscar Davies: Part 1, Part 2 and Part 3.

See also: The Guardian, House of Lords report calls for digital super-regulator

The Attorney General’s office has published its response to a call for evidence on the Impact of Social Media on the Administration of Justice (March 2019), which concludes that “whilst there are new challenges with the use of social media, these challenges are not unmanageable”. But it recommends, among other things, more public legal education, and education of jurors, about the risks of social media use to the fair administration of justice. It reports that

“work is underway to develop clear, accessible, and comprehensive guidance on contempt led by the Judicial Office, working with partners including the Attorney General’s Office and others. …

In addition, the Independent Press Standards Organisation [IPSO] is preparing guidance on court reporting, with the intention of publishing in 2019.”

There is currently some guidance on the Gov.uk site about Contempt of court.

In addition, the Attorney General’s Office is “working with Facebook, Google and Twitter to address contemptuous or otherwise unlawful social media posts.” One of the problems with machine learning and algorithms is the tendency to reinforce wrong behaviour simply because it is common. So the report notes that “Whilst rare, in some situations the Google Autocomplete function has identified people who are subject to an anonymity order.” That can only be because it has detected previous searches. Apparently “ Google has made improvements to their Autocomplete tool to help protect against inappropriate Autocompletes.” (The same problem applies to hate speech, for example.)

Inquiries

The Inquiry published an update on 5 March 2019. It explained that the Inquiry has been organised into two phases. The focus of Phase 1 is to establish what happened on the night of 14 June 2017, so that in Phase 2 “attention can be directed to those aspects of the circumstances leading up to the fire that are likely to shed most light on the causes of the disaster”. The Chairman, Sir Martin Moore-Bick, is reviewing the full body of evidence presented in Phase 1 and is drafting his report on that phase, which he hopes to complete in the spring. In his statement at the end of last year, the chairman said:

“This Inquiry is unlike any other in the number of core participants and, I would suggest, in the scope and complexity of the evidence it has considered and will yet have to consider. There are currently a total of 598 core participants, of whom 568 are individuals, 10 are government or institution bodies of one kind or another, and 20 are commercial bodies. Over the last 12 months, the Inquiry team has collected, sifted and disclosed over 20,000 documents not including the many witness statements we’ve also received.”

The Inquiry has published a Path to Phase 2 Hearings infographic. The chairman does not think Phase 2 will get going until towards the end of the year. There is a considerable amount of work in progress to prepare for Phase 2 hearings.

In the meantime, the Metropolitan Police published an update stating that

“As the Grenfell Tower Inquiry (GTI) has progressed, both the police senior investigating officer and the CPS agree that the police investigation must take into account any findings or reports produced by the GTI, including its final report. If the police investigation concludes there is sufficient evidence to consider criminal charges in relation to the fire, a file will be submitted to the CPS for its consideration.”

However, since the phase 2 public hearings are not likely to begin much before the end of 2019, and since the publication of any final inquiry report will follow phase 2 hearings, “the Met’s assessment is that any file submission to the CPS is unlikely to be sooner than the latter part of 2021”.

Understandably, the victims’ families and survivors have expressed their “extreme frustration” at the delay before prosecutions can be taken. The Guardian reports that

police have so far interviewed 11 people under criminal caution for offences ranging from manslaughter to health and safety breaches. Some were interviewed as representatives of their organisation, others as individuals. There have been no arrests.

Grenfell United, a group representing the survivors and bereaved from the fire in west London on 14 June 2017, said the police decision to delay passing files to prosecutors was “extremely frustrating and disheartening” and that “vague reassurances are wearing thin”.

Terrorism

We reported in Weekly Notes 18 February 2019 about the decision of the Home Secretary Sajid Javid to deprive Shamima Begum, currently in a refugee camp in Syria, of her British citizenship. One issue concerned her baby, and whether he might be taken into care if brought back to the UK. That point is now academic, as news emerged that he had now died of pneumonia.

There has been some useful commentary on the case since we last reported, including:

Obiter J, Law and Lawyers blog, Shamima Begum and the law (updated 9 March 2019)

Transparency Project, Shamima’s baby — the family law aspect

Family law

In the last episode of BBC Radio 4’s Law in Action, presenter Joshua Rozenberg visited a Family Drug and Alcohol Court in Coventry, where he spoke to a judge, to social workers and to some of the people the court has helped. The process involves intensive supervision and support, including regular review by the court, but the people it has helped say that without it they could not have got clean of drugs, sorted out their lives and been able to look after their own children. Though the process takes time and effort, the resources saved in terms of cutting the burden on other local authority services fully justifies the outlay.

FDAC, sometimes known as ‘problem solving courts’, were pioneered by Judge Nicholas Crichton, who sadly died last December.

See Gazette, Problem-solving pioneer judge Nicholas Crichton dies

Legal Profession

As tweets throughout the day testified, women in law went and were photographed, at the Law Society in London and also in Leeds and Cardiff. The Bar Council also marked the occasion.

Dates and Deadlines

St Mary’s Church, Putney, London— Wed, 13 Mar 2019, 4pm to Thu, 14 Mar 2019, 6.30 pm

ICLR’s Paul Magrath will be appearing on a panel chaired by Joshua Rozenberg at this year’s Putney Debates on the topic of judicial independence. See our blog post here.

Click here for Programme Details. Tickets may be obtained via Eventbrite.

ICLR News

We have improved the user experience and usefulness of ICLR.3 in the way it displays case reports, which we explain more fully in a separate post on the blog. See ICLR.3 — new features update, March 2019

We have also updated the Menu drop-down on our Home Page…

… to include a feed from the Blog. This means you can now select from the last six or so posts uploaded onto the site.

And finally,

is from Strictly Obiter and involves a law report. With an amazing title.

This prompted us to ask if anyone, anywhere could find a case with a better title to be The Case With The Oddest Title. Watch this space (or Twitter).

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.