Weekly Notes: legal news from ICLR, 13 June 2022
This week’s roundup of legal news includes removal to Rwanda, removal of cladding, an inquisitorial trial in Paris and an adversarial one in Virginia. Plus recent case law and commentary.
Refugee removal to Rwanda
A challenge to the government’s policy of removing refugees who arrive on these shores illegally to Rwanda has failed in the High Court, and the first flight out seems imminent. Mr Justice Swift refused to grant an injunction applied for on behalf of several asylum seekers facing “offshoring” to Rwanda. The decision will not stop individual refugees from further legal challenges to their removal to Rwanda, or a judicial review of the policy, which Swift J said could take six weeks: Guardian, UK deportation flight to Rwanda can go ahead, high court judge rules.
While superficially similar to the offshore processing scheme whereby Australia sends its refugees to the island of Manus in Papua New Guinea, the Rwanda scheme is not about processing claims for admission to the UK. It’s about transferring the refugees to Rwanda, to be considered for admission to Rwanda. They are not merely being processed there. This is clear from the Memorandum of Understanding signed by the governments of the UK and Rwanda back in April.
“Desiring to facilitate co-operation between the Participants in order to contribute to the prevention and combating of illegally facilitated and unlawful cross border migration by establishing a bilateral asylum partnership in which Rwanda commits to receive asylum seekers from the United Kingdom, to consider their claims for asylum, giving effect to their rights under international law through the Rwanda domestic asylum system and arranging for the settlement in Rwanda of those recognised as refugees or otherwise requiring protection…”
The justification for this, according to the Home Office, is to frustrate the efforts of people-smugglers and dissuade refugees from using their dangerous and unlawful services to come to the UK. “Get smuggled to the UK and you’ll be on-smuggled to Rwanda” seems to be the deterrent. What this says about Rwanda is questionable. The government has been forced to treat Rwanda both as a haven of opportunity for refugees, with full protection of their human rights, in order to avoid (if it can) legal objections, while at the same time making out to the refugees what an awful thing it must be to be sent there — so bad you should think twice about paying those people smugglers for that dodgy rubber dinghy to cross the channel. You could call it Moebius strip logic, perhaps.
The scheme has reportedly been criticised in private by Prince Charles. According to the Times, the Prince of Wales was heard calling the policy “appalling” and was particularly displeased as to represent the UK at the Commonwealth Heads of Government meeting in Kigali, Rwanda, later this month. The archbishops of Canterbury and York and the other 23 bishops have written an “excoriating” letter to The Times denouncing plans to deport migrants to Rwanda as an “immoral policy that shames Britain”.
See also: Free Movement, How to respond to Rwanda removal notices
Cladding problems persist
It’s now five years since a devastating fire, accelerated by combustible cladding, took the lives of 72 people at Grenfell Tower in June 2017. By the following month we reported that a public inquiry had been set up under the chairmanship of Sir Martin Moore-Bick, retired Lord Justice of Appeal, and, notwithstanding some misplaced anxiety about his suitability for the role, hearings for Phase 1 began on 21 May 2018 and concluded on 12 December 2018. A report was published in October 2019. The Grenfell Tower Inquiry is now in its second phase, dealing with the causes of the factual findings made in Phase 1, including regulatory failings.
The Phase 1 report made a number of recommendations, including that similar cladding used in hundreds of other buildings be replaced. Five years after the tragedy, many residents are still financially trapped in affected buildings, unable to afford remedial works and unable to sell or mortgage their properties, notwithstanding attempts by the Minister for Levelling Up, Michael Gove MP, to shift the burden to the builders and developers who, collectively, were responsible for the installation of the condemned materials.
The Sunday Times now reports that “Only 6 per cent of flats with flammable cladding have been made safe five years after the Grenfell Tower tragedy that killed 72 people.”
Inside Housing has provided continual coverage of the inquiry, including: Grenfell Tower Inquiry diary week 78: ‘The abandonment of the ‘stay put’ strategy for high-rise residential buildings is essential’
From the report by Madelaine Schwartz in the London Review of Books (‘You got up and you died’), the Bataclan trial, which began on 8 September 2021 and has been in progress for the last nine months, sounds like a combination of inquest, criminal trial, and truth and reconciliation commission.
Ostensibly its purpose is to determine the guilt of the men men accused of the attacks on the Stade de France in Saint-Denis, a string of bars in the 10th and 11th arrondissements and the Bataclan theatre in Paris on 13 November 2015, in the course of which 130 people were killed and many more injured. But its inquisitorial approach contains a number of features which may seem inappropriate to a common lawyer.
Schwartz sets the scene with a description of the specially built courtroom within the Palais de Justice, near Notre-Dame cathedral in the centre of Paris.
“The courtroom has a capacity of 550 and has often been full: most of the attendees are survivors of the attack. It is built of wood, complete with inlays so that the statues personifying justice and eloquence can be seen. At the front is a raised bench where the judges preside. To their left are three public prosecutors. In front of them, at ground level, are long lines of seats for the many lawyers. Eleven men sit in a glass box, with three more in front. These are the accused. Outside the room, a line of TV reporters wait to capture the reactions of those leaving the court.”
Apparently there are more than 330 lawyers representing more than two thousand victims.
“Because of the way the French legal system is set up, the survivors and bereaved families, the ‘civil parties’, are also plaintiffs in this trial. Some of the two thousand plaintiffs were injured, others lost friends or relatives. The Bataclan and the city of Paris also ask to be considered plaintiffs. The number of plaintiffs increases over the months, and the lawyers continually try to widen the definition.”
All these lawyers representing all these victims need to justify their involvement. They “add to the chatter”, says Schwartz. “Self promotion is part of their job.” But it’s not just the lawyers who have to have their say. Some of the witnesses and experts also harness their testimony (or their loudly declared refusal to testify) to political causes, or their own self promotion. Among them are sociologists, historians, politicians. As for the lawyers, “Their speeches in court are long-winded: they seem to have set the timer to ten minutes”. Outside court, like everyone else, they comment to the media.
As the proceeding draws to a close, it will be interesting to see what conclusions, if any, it comes to. Almost everyone will have had a chance to speak, except for those who died. Will the outcome bring closure? A better understanding of the attackers’ motives? And what will become of the specially built courtroom: will it remain, as a sort of memorial; will it be used again; or will it simply be dismantled, leaving an empty space in the grandiose hall of the Palais de Justice?
See also: Sunday Times, Bataclan terror trial leaves Paris no closer to answers
Trial by judge or jury
The American edition of the notorious Depp v Heard libel proceedings concluded with a different ending, the jury finding in favour of Johnny Depp in the main action, with an award of damages of $10m in compensatory damages and $5 million dollars in punitive damages (reduced to $350,000 under Virginia state law). The jury also awarded Amber Heard $2m in compensatory damages on her counterclaim for libellous statements by Depp’s attorney. (CNN, Legal victory for Johnny Depp after he and Amber Heard found liable for defamation)
The verdict contrasts starkly with the result reached on a trial by judge alone in the courts of England and Wales last year: in Depp v News Group Newspapers Ltd  EWHC 2911 (QB), Mr Justice Nicol dismissed Depp’s claim for libel against News Group Newspapers Ltd and one of its journalists (“NGN”) in respect of an article in The Sun which had accused Mr Depp of being a wife-beater. The judge gave a reasoned judgment on the facts and the law, from which Depp was refused permission to appeal  EWCA Civ 423.
Both trials were widely reported, not least by the very diligent Nick Wallis, who obtained crowdfunding to support a trip to Virginia where he patiently waited outside court each morning to be admitted along with the crowds of other media and fans of the warring filmstars (most of them of the Deppite persuasion). More than one prominent feminist argued that Amber was not properly Heard (a counternominative effect) and that her silencing was emblematic of the treatment of women generally by the legal system.
Leaving that aside, the question of how the two trials of essentially the same facts could come to such opposite conclusions was both curious and troubling, and raised questions about the accountability as well as the reliability and fairness of jury trial, as opposed to a trained judge required to give a reasoned decision.
For more on this, see
- Jonathan Ames, The Times, Judge or jury: the Johnny Depp trials in two jurisdictions
- BarristerBlogger, Depp v. Heard: Why did an American jury reach a different decision than the English judge?
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CRIME — Abuse of process — Stay of proceedings: Barking and Dagenham London Borough Council v Argos Ltd, 08 Jun 2022  EWHC 1398 (Admin);  WLR(D) 254, DC
CRIME — Sentence — Misconduct in public office: R v Collins (Darren) (R v Lewis (Jamie)), 30 May 2022  EWCA Crim 742;  WLR(D) 242, CA
DISCRIMINATION — Age — Employment: Ligebehandlingsnævnet, acting on behalf of A v HK/Danmark, 02 Jun 2022 (Case C-587/20); EU:C:2022:419;  WLR(D) 245, ECJ
EXTRADITION — Compatibility with Convention rights — Respect for family life: Gurskis v Latvian Judicial Authority, 27 May 2022  EWHC 1305 (Admin);  WLR(D) 249, QBD
ENVIRONMENT — Protection — Waste: FCC Česká republika s r o v Ministerstvo životního prostředí, 02 Jun 2022 (Case C-43/21); EU:C:2022:425;  WLR(D) 244, ECJ
EUROPEAN UNION — Immigration — Right to reside: Velaj v Secretary of State for the Home Department, 31 May 2022  EWCA Civ 767;  WLR(D) 241, CA
HUMAN RIGHTS — Life — State’s duty to investigate death: R (Balkwell) v Chief Constable of Essex Police, 30 May 2022  EWHC 1288 (Admin);  WLR(D) 238, DC
IMMIGRATION — Deportation order — Conducive to public good: Gosturani v Secretary of State for the Home Department, 09 Jun 2022  EWCA Civ 779;  WLR(D) 253, CA
MARRIAGE — Divorce — Financial provision: Villiers v Villiers, 10 Jun 2022  EWCA Civ 772;  WLR(D) 255, CA
PENSIONS — Police pension scheme — Survivor’s pension: Green v Metropolitan Police Comr, 27 May 2022  EWHC 1286 (Admin);  WLR(D) 252, QBD
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Panopticon: TalkTalk: Clever pleading cannot guide Claimants out of Warren: Smith v Talktalk Telecom Group Plc  EWHC 1311 (QB), QBD
Free Movement: Missing grounds not necessarily fatal to Upper Tribunal appeal application: SA (Non-compliance with rule 21(4))  UKUT 132 (IAC), FTT (IAC)
Protest Matters: Some thoughts on DPP v Cuciurean: Director of Public Prosecutions v Cuciurean  EWHC 736 (Admin);  WLR(D) 152, DC
NIPC Law: Registered Designs — Erol v Posh Fashion Ltd  EWHC 195 (IPEC), Ch D
Sentencing, Crime and Justice: Taking offences into consideration (again): Director of Public Prosecutions v Coyle & Howard  IECA 114, CA (I)
RPC Perspectives: Trade mark infringement: Amazon inadvertently hits its target: Lifestyle Equities CV v Amazon UK Services Ltd  EWCA Civ 552;  WLR(D) 199, CA
Nearly Legal: A deliberate act needs options to choose between: R (Roman) v Southwark London Borough Council  EWHC 1232 (Admin);  WLR(D) 229, QBD
Free Movement: Court of Appeal backs tough approach to English language cheating cases: Secretary of State for the Home Department v Akter  EWCA Civ 741;  WLR(D) 236, CA
Judicial speeches: Donoghue v Stevenson 90th Anniversary Conference, introduction by Lord Reed: Donoghue v Stevenson  UKHL 100;  AC 562
Other recent publications
Electronic monitoring — a progress update
The National Audit Office have published an update setting out their assessment of the delivery by HM Prison and Probation Service (HMPPS) of its electronic monitoring (‘tagging’) transformation programme, prompted by its cancellation of a key enabling project in 2021. The report is pretty critical:
“HMPPS has launched new services, extended tagging to new groups of offenders and taken pragmatic steps to reduce delivery risks. But it has not achieved the fundamental transformation of tagging services it intended and has wasted £98 million through its failed attempt to develop the Gemini case management system. It did not manage the implications of its complex delivery model effectively, set overly prescriptive requirements and did not perform its role as systems and service integrator effectively.”
See also: Justice Gap, Failed electronic tagging overhaul wasted £98m, report finds
Should the Church of England be disestablished?
As the world celebrated the Queen’s platinum jubilee, Jonathan Chaplin, in a guest post on the Law & Religion UK blog, pointed out that Her Majesty is also the longest-serving ‘Supreme Governor’ of the Church of England. “The weekend’s joyous celebrations were hardly the moment to focus on the merits or demerits of Establishment,” he conceded, but pointed out that “The question of the legitimacy of Establishment will, however, not go away any time soon”.
Genetic paparazzi are right around the corner, and courts aren’t ready to confront the legal quagmire of DNA theft
Law professors Liza Vertinsky and Yaniv Heled explain on Inforrm’s blog why they believe that “as more advanced, faster and cheaper genetic technologies have reached the consumer realm” there have been concerns about the surreptitious theft of DNA (eg from celebrities), and “growing public interest in genetics has increased the likelihood that genetic paparazzi with DNA collection kits may soon become as ubiquitous as ones with cameras”.
Tweet of the Week
is from barrister Colm Nugent on the joys of getting ready for an online hearing:
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.