Weekly Notes: legal news from ICLR-15 April 2019

In this last roundup of the Hilary Term, we look at the latest law and policy stories including Brexit, Assange’s extradition, the Brunei boycott, legal aid myths and new crimes on the statute book. But who is the seasonal sacrificial lamb?

The sacrificial lamb (… no escape from reality). Image by Pixabay via Pexels.

Politics

On 8 April 2019 the Queen gave her Royal Assent to the European Union (Withdrawal) Act 2019 (formerly known as the Cooper-Letwin Bill, or more officially the European Union (Withdrawal) (No 5) Bill), which required the government to seek, and on 10 April, after further shuttlecock negotiation, the Prime Minister managed to obtain, a flexible extension to the Article 50 notice of withdrawal period, which was to have expired on 12 April (previously extended from the original exit date of 29 March). The new date is 31 October 2019, prompting facetious references to “Trick or Treat” day or, rather more cleverly, the title of Steve Peers’s post on EU Law Analysis, Trick or Treaty: The legal issues of the second extension of the UK’s EU membership

The extension was granted by virtue of European Council Decision (EU) 2019/584, OJ No. L 101, 11.04.2019, p.1 and given effect in UK law by the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (№2) Regulations 2019. This amends the definition of “exit day” in section 20(2) of the European Union (Withdrawal) Act 2018 which has a knock-on effect on a large volume of primary and secondary EU exit legislation due to enter into force on “exit day” and reset the Statute Book to non- (or discontinued-) EU membership.

The problem for the government remains the need to obtain consensus on a withdrawal agreement, which in the current climate of mutual suspicion and hostility between the various factions seems remote. The extension is a flexible one, meaning that the UK may withdraw sooner if a deal is approved by Parliament. If Britain has not ratified the withdrawal treaty by May 22, then we will need to participate in the EU Parliamentary elections. Ironically, the party most geared up for these is the newly-formed Faragist Brexit Party, whose anti-elitist credentials have been boosted by the recruitment of Annunziata Rees-Mogg, sister of the more famous Jacob (poster-boy for the ERG faction in the Conservative party), and described by the Times as speaking in a “perfectly polished porcelain” accent, but with “a serrated edge”. Golly.

If, however, a deal with the EU is achieved and ratified in May (or if the UK fails to participate in the EU elections) the UK would be out on 1 June. But all the indications are that we will muddle on, using the elections as a proxy second referendum, but with no clear message emerging — unless some grand supervening event justifies revocation of the Article 50 notice altogether and we all go home, sigh loudly, and make a nice cup of tea.

See also: Financial Times (£) Brexit timeline: key dates in the UK’s divorce from the EU

Law and Laywers blog, Brexit extension — Withdrawal Act 2019 — Exit Day

Law and Religion UK, Law and religion round-up — 14th April (includes a handy explainer on Brexit legislation)

Human Rights

The Dorchester Hotel has been the target of protests and a boycott after its ultimate owner, the Sultan of Brunei, announced that homosexuality, sodomy, adultery and rape would be punished with death by stoning. As has been pointed out, eg by David Keen on his Opinionated Vicar blog, Brunei is not the only Islamic regime to apply the death penalty to homosexuality (as well as apostacy etc). He points to Saudi Arabia, and the UAE, but there is also Iran. In the latter case, the (modified) sanctions regime means that most people in this country are already boycotting Iran, but Saudi Arabia, in terms of things it owns, perhaps less so.

Over the weekend a big legal do took place at the Dorchester, the annual meeting of the International Academy of Trial Lawyers, which the Irish Attorney General, Séamus Woulfe SC, thought twice about attending and cancelled (see Irish Times). Philippe Sands, the human rights lawyer, did attend, but made a point of discussing the aims and cause of the boycott.

Apparently the matter was discussed at the event and a decision taken to boycott the hotel chain for any future events (though it’s not clear whether any were already booked.) Not everyone agreed with this approach.

According to the FAQs on the IATL website, the event had a fairly specific “cocktail attire” dress code for its formal dinners, ie “Cocktail attire for ladies includes dresses, pant suits, or skirts and blouses. Cocktail attire for gentlemen includes dress trousers, dress shirts, sport coat, suit (tie optional).” The website also features a quotation about leadership, to which members (who join by invitation only) might now consider paying greater attention:

“Leadership is about inspiration — of oneself and of others. Great leadership is about human experiences, not processes. It is an attitude, not a routine.”
– Lance Secretan

Meanwhile, it is sobering to consider how difficult it might be to boycott a regime like Saudi Arabia effectively, given how deeply and widely its tentacles of ownership and financial support extend, including to many UK universities. Keen notes that Twitter is part owned by Saudi Arabia. But so must be many public companies, since presumably all it takes is to buy some shares. (If you have shares in BAe Systems, though, you might want to consider how the weapons they sell to Saudi Arabia are being reportedly misused in the civil war in Yemen.)

Extradition

The founder of WikiLeaks was effectively evicted from the Ecuadorean embassy on 11 April 2019, after the State of Ecuador revoked the asylum granted to him seven years ago. Embassy staff open their doors and allowed officers from the Metropolitan Police to enter and remove Mr Assange, who it is fair to say did not walk out in quiet dignity, and who faces charges of sexual assault and criminal theft of US state secrets, and the possibility of a US prison sentence.

He originally sought asylum in 2012 after absconding bail pending extradition to Sweden to face the sexual assault allegations, arguing that those charges were trumped up as a ruse to enable his ultimate extradition to the United States. But it seems Sweden was not informed in advance of last week’s developments, while the US reportedly was. The US Justice Department Justice Department later released a one count indictment against Assange, alleging that he conspired to violate the Computer Fraud and Abuse Act with whistleblower Chelsea Manning in 2010, and issued an extradition request. Initially, though, Assange will need to face the charge of skipping bail, which might mean a stretch in chokey this side of the pond first.

Though Assange does not make an attractive martyr, and his somewhat selective approach to transparency calls his campaigning sincerity into question, many are concerned that the charge currently being brought against him by the US involves a wider threat to press freedom that others may well regret. A statement by the Freedom of the Press Foundation said: ‘Whether or not you like Assange, the charge against him is a serious press freedom threat and should be vigorously protested.’ Regardless of whether what Assange and Wikileaks did was really journalism or even an exercise of free speech, the sinister use of “conspiracy” to describe alleged exchanges between a publisher and their source, if successfully prosecuted, would set a dangerous precedent.

Explaining the extradition issues in Assange, Extradition and Human Rights, the legal blogger Spinning Hugo points out that the “dual criminality” test, whereby extradition can only be ordered to a requesting country for something that would be an offence in the sending country, is satisfied in this case because “it would similarly be an offence to conspire to commit the unauthorised obtaining of data held on a computer contrary to section 1 of the Computer Misuse Act 1990”. The court will have to decide whether the extradition request is genuine and not an abuse of process in some way, whether the United States is the appropriate forum for any trial, and whether such a trial would be unfair on the defendant.

Although some members of the opposition front bench have suggested that the extradition should be halted by the government on ground of abuse of process or breaches of human rights, the role of the government or government ministers have been substantially reduced under the current legislation, and the process is largely judicialised. This means that (with some exceptions, eg in relation to the risk of the death penalty being applied, not relevant here) it is a matter for the courts, not government ministers, as it might have been in the past.

However, the extradition currently sought to the USA might be avoided if Sweden, having abandoned its attempts to obtain Assange’s extradition in the face of the asylum conferred by Ecuador, were to resuscitate its warrant. If so, the Home Secretary might be able to defer the US request and prioritise the Swedish. As Spinning Hugo points out, “Rape is a more serious offence than hacking, and the original Swedish warrant was seven years earlier.” But he might actually be better off.

“If Mr Assange were extradited to Sweden, he could not be extradited from there to the United States for offences the UK would not also extradite him for (an aspect of the specialty rule). He could not therefore be any worse off.”

Moreover, Sweden’s extradition treaty with the USA, unlike the UK’s, would block any

“extradition for an ‘offense connected with a political offense’. Mr Assange’s alleged hacking may be said to be covered by this wording, in a way that it is not under the UK legislation. Ironically therefore, once Mr Asasange has served his punishment in the United Kingdom for skipping bail, his best hope for avoiding extradition to the United States is that he is extradited to Sweden first.”

See also: press release from US Attorney’s office, Eastern District of Virginia, WikiLeaks Founder Charged in Computer Hacking Conspiracy

The Guardian, Julian Assange’s charges are a direct assault on press freedom, experts warn

Law and Lawyers blog, Assange ~ Arrest and possible extradition to USA

Byline Times, Julian Assange appears in Court — what happens next? and Assange: Arrest was Inevitable — Extradition is not a Done Deal

Legal Aid

Nothing is easier for politicians and the papers to get right than the facts about legal aid, but for some reason, which may or may not be to curry popular favour, they insist on getting them wrong. The latest targets for wilful slur have been the pilot acquitted of manslaughter in respect of the Shoreham Airshow tragedy and the so-called jihadi widow stripped of her British citizenship in a moment of popular toughness by the Home Secretary.

Both The Mirror and the Daily Mail foamed outrage at the notion of “millionaire” pilot Andrew Hill getting £170,000 legal aid for a trial in which, after considerable examination of expert evidence as to the causes of the tragedy, he was found not guilty. In a thread on Twitter, CrimeLine (Andrew Keogh) explains the way this actually works and why the money is not Hill’s to spend but is provided for the public benefit of a fair trial, to which we are all entitled.

As another commentator, the Secret Barrister pointed out:

It’s one thing when The Mirror — a market leader in legal aid trash news — whips its readers into uninformed apoplexy over criminal legal aid being granted to those who are, after a fair trial only possible because of legal aid, convicted. But it breaks bold new ground even for this organ to resent legal aid being granted to a man whom a jury has found to be not guilty.

In the case of Shamima Begum, the Daily Mail, having noted that she “is on legal aid despite being stripped of UK citizenship”, duly whipped up its readers’ Fury as jihadi bride’s legal fees are paid by taxpayers. Noting wearily that “the basics are yet to be learned by those with the biggest megaphones”, the Secret Barrister patiently explains:

Everybody is also entitled to a fair hearing where a legal decision has been taken which affects them. The removal of a person’s citizenship — a government telling a British-born citizen You have no right to exist within our borders — is one of the most far-reaching decisions the state can make. We do not want to live in a country where politicians can act with unchecked power; the rule of law requires that those affected have a route to challenge a decision and have an independent court review the evidence and decide whether that decision was taken in accordance with the law.

Quite apart from the importance of testing the application of the law in this and similar cases, the point is that “Shamima Begum herself, of course, will not receive a penny of taxpayers’ money”. That’s not how legal aid works. It isn’t “handed to” bad people to add insult to the injury of victims, and the nation’s indignation. It’s provided for a service from which we all benefit, namely the maintenance of the rule of law. It’s a bit like suggesting the cost of medical treatment is paid directly into the hands of patients, rather than to the medical staff and providers of service and equipment used. Even the BBC fell into the error of using the ‘given’ word, and putting it in quotes (without any explanation in the copy) is not any sort of excuse: but they changed the headline after a twitter storm.

Before:

After:

In fairness to the story, the BBC (unlike the Mail and Mirror) does include a fairly decent explainer of the case background, and the hurdles faced, and links to articles about legal aid. So readers drawn in by indignation may end up better informed, if no wiser.

Crime

Notwithstanding the objections of certain Rt Hon Dinosaur MPs, the Voyeurism Act 2019 has now come into force, enabling those convicted of ‘upskirting’ to be imprisoned for up to two years and end up on the sex offenders register. According to the government announcement,

“The practice typically involves taking a picture under a person’s clothing without them knowing, with the intention of viewing their genitals or buttocks.

The government intervened last June to bring forward measures to tackle this behaviour, after a Private Members Bill did not pass its second reading.”

The Act creates two new offences by amendment of the Sexual Offences Act 2003, inserting a new section 67A. The changes will cover England and Wales; ‘upskirting’ is already a specific offence in Scotland.

On the same date (12 April), the Counter-Terrorism and Border Security Act 2019 came into force. According to the government announcement,

It is now illegal to recklessly express support for, or publish images of flags, emblems or clothing in a way which suggests you are a member or supporter of a proscribed organisation and certain preparatory terrorism offences, including encouragement of terrorism or the dissemination of terrorist publications, now carry a maximum sentence of 15 years.

There is also what might be called Shamima’s law, to deal with “jihadi tourism” as it’s sometimes known:

A new offence introduced in the Act also gives the Home Secretary the power to designate an area outside of the UK, subject to Parliamentary approval, to restrict UK nationals and residents from entering or remaining in that area, if he is satisfied that it is necessary to protect members of the public from terrorism. An individual found to have entered or remained in a designated area, unless for a legitimate reason such as being there involuntarily, could face up to 10 years in prison. The offence will not allow the retrospective prosecution of those who have already travelled overseas to fight and returned to the UK, but it will assist in a future conflict to which UK nationals or residents seek to travel.

Family law

As in the case of legal aid, the media seem to revel in attempting to sensationalise (or “make it more ‘relevant’ for our readers”) any story about family law. If it isn’t a “custody battle” (ie a dispute over what is properly called a child arrangements order) heard in a “secret court”, then it’s a “quickie divorce” (short interim hearing to grant uncontested order nisi). So when the government announced “New divorce law to end the blame game”, the papers had a field day. Of course we knew this was coming, because there’d been a public consultation. The basic change, to reduce the potential for conflict in resolving divorce, will be to remove the need to establish a factual basis (one of five options) to show that the marriage has broken down irretrievably (as currently required under s 1 of the Matrimonial Causes Act 1973). Instead, this will be replaced by a statement to that effect, with no option to contest it, and a “period of reflection” of at least six months, giving the divorcing party an option to change their mind.

These reforms retain what works well in existing divorce law and remove what stands in the way of resolving difficulties more amicably when a marriage has irretrievably broken down and requires an orderly, legal ending. The new legislation is expected to be introduced as soon as Parliamentary time allows.

But there is, as yet, no draft government Bill, though there is already at least one private members Bill. However, the proposals are sufficiently choate for the press and others to have had a field day in reporting them in lurid and wrongheaded ways, as Jo Edwards, Head of Family at Forsters solicitors, explains in a post on the Transparency Project blog, Finding fault in the reporting of no fault divorce. She patiently dismantles claims that the “the number of divorces will go up, as will the misery it causes to families” (Christian Institute), that it means “DIVORCE MADE EASY — Couples can just say they’ve had enough” (Metro), Quicker divorces on the cards” (ITV News), “Divorce on demand” (Daily Mail), or various claims by the Coalition for Marriage that “Two consenting parties already have access to a no-fault divorce”, that “10% of the couples who begin a divorce petition to abandon it before finalising” and that the reforms will “Reduce the status of marriage to that of a tenancy contract which can be dissolved at minimal notice by either side with no expectation of permanence” among other things. But, she finds, “Despite the sometimes misleading headlines, there is broad support in favour of the introduction of no fault divorce”.

One suspects that the problem for the media is that, as in other areas of reporting, the absence of conflict or outrage means the absence of a marketable story.

For more on Family Law, keep up to date with the Family Court Reporting Watch roundup and other posts on the Transparency Project blog.

Legal information

SLAW, the Canadian online legal magazine, reports that Tom Bruce, Pioneer of the Free Access to Law Movement, Retiring From Cornell in June. Bruce was one of the founders of Cornell’s Legal Information Institute or LII, the original free law resource which inspired AustLII, CanLII and our own BAILII among others. Bruce posted a farewell message on the Cornell LII site, in which he looks back on the limitations of legal publishing a quarter of a century ago, when it all began. It’s a fascinating story and a mark of how much good the internet can do, at a time when we seem obsessed with its downsides.

A report in the UK Press Gazette notes that the Press Association’s ‘robot-written’ story service gets first paying subscribers after trial ends. The report explains that the PA set up a service called Reporters And Data And Robots or RADAR, which automatically collects information and statistics made available as public open data from Government departments, police forces and other public bodies, before a bespoke production system using Natural Language Generation technology to localise the stories. The result, after a bit of human editorial intervention, can be sold to local and national news publishers.

It raises the prospect of using similar techniques to generate legal stories, based on data-mining of open data such as published judgments, though we hasten to add that ICLR has no plans to replace our highly expert legally qualified reporting team with robots. What we might be able to do, though, is help them to harvest truly reportable significant or “precedential” cases from the vast number of new judgments published annually by the courts, by some process of prior filtering and categorising that could be done by a bot. This is something ICLR&D, our research and development lab project, is ideally suited to doing.

Currently we are working with JUST: Transcription on a project to improve the writing and distribution of judgment transcripts.

Dates and Deadlines

Ministry of Justice HQ, 102 Petty France, London — 10 May 2019, 10:30am — 3:30pm

Are you interested in observing the rule making process? If so, you can attend this open meeting as an observer. There will also be an opportunity at the end of the meeting for guests to ask pre-submitted questions to the Committee. You need to apply in advance.

Number 70 Oxford St, Manchester — 9 to 30 May 2019, 6pm to 8.30pm

Manchester Met is delighted to be hosting a series of events as part of Her Majesty’s Prison and Probation Service Insights ’19 Festival. See the full schedule here.

  • Hilary term ends on Wednesday 17 April 2019.
  • Easter term runs from Tuesday 30 April to Friday 24 May 2019.
  • Trinity term begins Tuesday 4 June and ends on Wednesday 31 July 2019.

Weekly Notes will be taking a break for the Easter Vacation. For amusement, you can always do the RightsInfo quiz: Can You Match the Emoji to the Human Right?

And Finally…

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.