Weekly Notes: legal news from ICLR — 15 July 2019
After a short holiday break we’re back with a new roundup of legal news and commentary, including contempt of court, damages discount rates, environmental protest and more…
Calls for criminalisation of “ecocide”
The non-violent environmental protest group Extinction Rebellion are currently demonstrating outside the Royal Courts of Justice in London. There is a blue boat parked outside the main entrance on the Strand. They say they will be there all week. Meanwhile the fuming traffic approaching from Fleet Street to the east, and the Aldwych to the west, has been diverted by police.
The reason they have chosen the law courts today is not because of some case being heard (the usual reason for a protest here), but in memory of an environmental lawyer called Polly Higgins who died earlier this year, and to promote her proposal for a new law criminalising “ecocide” — viz the “loss or damage to, or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished”.
That definition comes from the website Ecocide Law, which further explains:
“Ecocide is a crime against the living natural world — ecosystem loss, damage or destruction is occurring every day; for instance, the Athabasca Tar Sands. Ecocide is a crime against the Earth, not just humans. Further, ecocide can also be climate crime: dangerous industrial activity causes climate ecocide. Currently there is a missing responsibility to protect. Unlike crimes against humanity, ecocide has severe impact on inhabitants, not just humans. Thus, what is required is the expansion of our collective duty of care to protect the natural living world and all life. International ecocide crime is a law to protect the Earth.”
The protesters have three demands, according to their leaflet.
(1) The government must tell the truth about the climate and wider ecological emergency and work alongside the media to communicate with citizens;
(2) The government must enact legally binding policy measures to reduce carbon emissions to net zero by 2025 and reduce consumption of resources to below half of sustainable levels;
(3) A national citizen’s assembly to oversee the changes, as part of creating a democracy fit for purpose.
Discount rate announced
Acting pursuant to section 2 of the Civil Liability Act 2018 the Lord Chancellor, David Gauke, has reviewed the assumed rate of return on investment of damages (generally known as the “discount rate”) and announced that henceforth (until the next five-year review) it shall be minus 0.25%.
What this means in effect is that in awarding a lump sum for damages for personal injuries intended to represent future income needs, the court should assume that the long term rate of return from investment of the sum will be less than zero. But not as less than zero as it was before: the current rate is minus 0.75%, which has been in place since the government changed it from (plus) 2.5% in February 2017, according to the Law Society Gazette (Revealed: Government sets PI discount rate at -0.25%). The 2.5% rate was set back in 2001.
The purpose of the 2018 Act was to introduce regular reviewing of the rate to better keep in step with reasonable investment return expectations (which are, of course, constantly fluctuating in response to banking rates and stock exchange sentiment). Today’s rate change followed a Call for Evidence which concluded in January this year.
Making today’s announcement the Ministry of Justice explained:
When victims of life-changing injuries accept lump sum compensation payments, the final figure they are awarded is adjusted via a calculation known as the Discount Rate. This is to reflect the interest they can expect to earn by investing such payments, as well as the effects of tax, expenses and inflation on these returns.
Compensation awards using the rate aim to put claimants in the same financial position had they not been injured, including loss of future earnings and care costs.
The current rate of minus 0.75% has led to concerns that claimants were being substantially over-compensated, increasing financial pressure on public services that have large personal injury liabilities, particularly the NHS.
Today’s decision comes after an extensive review — which formed part of reforms set out in the government’s Civil Liability Bill 2018 — to ensure a more balanced approach that would give victims full and fair compensation.
It means that defendants’ insurers (who in almost all cases are the ones actually paying out the money) will need to pay out smaller lump sums to claimants in respect of their insured’s liability than under the existing rate. But it still assumes that most claimants having got the money will not be able to invest it in such a way as to get a positive return. This can be for a number of reasons, the main one being lack (or rejection) of good reliable investment advice.
The ABI (Association of British Insurers) has responded to the announcement in less than enthusiastic terms: New rate bad news for insurance customers and taxpayers. Director general Huw Evans said:
“This is a bad outcome for insurance customers and taxpayers that will add costs rather than save customers money. A negative rate maintains the fiction that a claimant and their representatives will knowingly choose to invest their damages in a way that would guarantee losing them money. This will remain the lowest Discount Rate in the Western world, leaving England and Wales an international outlier at a time when we need to boost our attraction to international capital.”
But the Association of Personal Injury Lawyers has welcomed the new rate. APIL president Gordon Dalyell said:
“We welcome the Lord Chancellor’s decision to set the discount rate at minus 0.25 per cent, after uncertainty about the impact of the Government’s new approach of setting the rate on the basis that injured people should be considered ‘low risk’ investors. The Government has faced sustained pressure from the insurance industry to set a rate which would not be appropriate for injured people, who should not be forced to take any risk with their investments. We must remain vigilant that this new rate does provide them with the fair compensation they need and deserve.”
See also, Temple chambers, Setting the discount rate (personal injury awards) — some thoughts, in which Sarah Crowther QC and Dan Clarke say:
“It seems that the review system has increased transparency, consultation and evidenced-based decision-making with a view to trying to ensure that compensation is truly both full and fair to both sides.”
Freedom of the press
The Global Conference for Media Freedom was co-hosted in London by the United Kingdom and Canadian governments from 10 to 11 July 2019. It was part of an international campaign launched by the United Kingdom that aims to shine a light on media freedom everywhere and improve the safety of journalists to work without interference, reducing attacks on journalists and easing state restrictions on freedom of media and expression. The conference brought together ministers and officials from across the globe, international governmental organizations, civil society, academics, editors, publishers and journalists to debate together and act concertedly.
Among the highlights of the event:
The Secretary of State for Digital, Culture, Media and Sport, Jeremy Wright announced that the UK will set up a National Committee for the Safety of Journalists.
Lord Neuberger, Chair of the High Level Panel of Legal Experts, and Amal Clooney, Deputy Chair of the Panel, announced the composition of the Panel, which is to be an independent body, convened at the request of the UK and Canadian governments, and charged with developing and promoting legal mechanisms to help prevent and reverse media abuses.
Representatives of governments around the world signed a global pledge to protect media freedom. The announcement notes that “Too often, it is governments who are the source of threats to media freedom.” The pledge sounds grand, but it’s not clear from the copy published (in French and English) by the Department of Digital, Culture, Media and Sport who (ie which nations) actually signed it, apart from the UK and Canada.
The Foreign Secretary, Jeremy Hunt, gave a speech on the need to protect journalism. He said the aim of the conference to “send a resounding message that media freedom is not a Western but a universal value. At its best, a free media both protects society from the abuse of power and helps release the full potential of a nation.”
He admitted that “In a world where a Washington Post columnist, Jamal Khashoggi, was murdered inside a Saudi diplomatic property — and a talented young journalist, Lyra McKee, was shot dead by dissident republicans in Northern Ireland — it would be easy to succumb to fatalism.”
Instead, he promised a number of practical steps to promote press freedom. One of them, rather oddly, was “the British government will ensure that whenever we propose or amend a law, we will consider the potential impact on press freedom”. There must be lots of laws that have no such impact — but where is the commitment, say, to consider the impact of new laws on poverty, or education, or access to justice?
The embarrassment of maintaining polite discourse with a regime like Saudi Arabia after the brutal and apparently state-sponsored murder of Khashoggi is hard to trump, but with his litany of gripes against the media about what he calls “fake news” perhaps Trump himself offers another source of embarrassment — especially following the leaks of confidential diplomatic communications from the UK’s ambassador to the White House, Kim Darroch, which the press very freely (if not responsibly) published, along with the US President’s predictable condemnation. Questioned about this, Jeremy Hunt defended the publication (he couldn’t very well not) while deploring the leaks themselves. The Metropolitan Police, however, rather bucked the trend by announcing in the course of its investigation of the source of the leaks, that publication of the confidential material could be prosecuted under the Official Secrets Act (in which context any public interest defence would be irrelevant). The implied threat was widely criticised, though it seems mild enough compared with the conduct of some regimes in shutting up (or indeed cutting up) journalists.
Contempt of Court
The High Court has sentenced Stephen Yaxley-Lennon, founder of the English Defence League, who goes by the ‘nom de guerre’ of Tommy Robinson and claims to be a ‘journalist’ under threat (see above for the real thing), to 19 weeks’ imprisonment for contempt of court. (See, previously, Weekly Notes, 29 October 2018 and, for commentary, Weekly Notes, 23 July 2018.)
In HM Attorney General v Yaxley-Lennon  EWHC 1791 (QB) Dame Victoria Sharp, President of the Queen’s Bench Division and Mr Justice Warby, sitting in the Queen’s Bench Divisional Court, found Yaxley-Lennon guilty of contempt of court for what he did and said outside the Crown Court at Leeds on the morning of Friday 25 May 2018, when the jury was in retirement at the end of R v Akhtar, a long trial in which a number of men were accused of sexual offences against women and girls. His live-streamed video commentary outside the court was widely shared on social media and was found likely to encourage vigilante action and harassment of the defendants and others, as well as disrupting the trial process.
The case has a bit of history. It has already been to the Court of Appeal (see In re Yaxley-Lennon (Practice Note)  EWCA Crim 1856;  1 WLR 5400) who remitted it to the Crown Court, sitting at the Central Criminal Court, where the Recorder of London, upon hearing it, concluded that the need to resolve factual issues meant it should more appropriately be heard by the High Court on an application by the Attorney General. Permission was given for that to proceed, despite the delay and changes in the way the case was presented since the original, flawed, contempt hearing by the trial judge at Leeds, because (para 103):
“the case raised important issues about how the law of contempt applies to those who seek to report and comment on criminal proceedings and, in particular, how they conduct themselves in and near the courts.”
The judgment is 30 pages long and has some interesting observations in it, as well as determining and resolving issues of fact and law. For example, there was an issue about whether the reporting restriction order (RRO), which he was found to have breached, had been sufficiently notified to the public, in view of a failure to display or mention it on the court noticeboard or Xhibit screen in the reception area of the Leeds court building. Although it had been uploaded onto the Digital Case System (DCS) and was therefore visible to legal professionals in the case, and anyone else authorised to access the DCS, it had not been added to CREST, the electronic system that updates the public court lists and Xhibit screens. That said, if the respondent had asked a member of the court staff, they could have obtained and supplied the information. He seems to have proceeded on the assumption there was a RRO but it had been lifted by the time the jury retired to consider their verdict. Not so. There is, the High Court held, a “duty of inquiry” in a case where there might be a reasonable expectation of restriction. “Someone who knows or suspects that an order is in place but does not know its terms is clearly put on inquiry” (para 57).
There is also an obiter dictum on the meaning of the “precincts” of the court for the purposes of the prohibition on filming within them in section 41(2)(c) of the Criminal Justice Act 1925 (at para 84):
“We would be inclined to give the term ‘precincts’ a flexible but purposive interpretation, regarding it as intended to allow a zone of relative calm around the perimeter of a court building, within which the protected categories of participant could be confident that their progress to and from the court building for the purposes of the relevant litigation would not be disrupted or intruded upon by the capture or publication of images.”
But in this case the real question was whether the filming of defendants as they arrived at court interfered “so significantly with the due administration of justice as to go beyond mere disobedience to the statutory ban on photography, and justify the more severe sanctions attaching to contempt of court” (para 85).
In the end, the court decided that it did. In summary (para 4):
“The respondent committed a contempt of court on 25 May 2018 in three respects: first, by breaching a reporting restriction imposed under s 4(2) of the Contempt of Court Act 1981, in the case of R v Akhtar; secondly, by live streaming a video from outside the public entrance to the court, the content of which gave rise to a substantial risk that the course of justice in that case would be seriously impeded; and thirdly, by aggressively confronting and filming some of the defendants in that case as they arrived at court, thereby directly interfering with the course of justice.”
Having given their full reasons for holding Yaxley-Lennon guilty on 9 July, on 11 July they issued their decision on penalty, explaining why the custody threshold had been crossed, making allowance for time already served in respect of the contempt, and why the residue (19 weeks out of 9 months) should not be suspended, though no more than half of it will be served. A separate decision on costs is awaited.
See also: Society of Editors, Robinson’s “convicted of journalism” claim is a dangerous distortion of the truth
5RB chambers, Tommy Robinson jailed for nine months for contempt
Crime / Employment
The somewhat discredited former Lord Chancellor, Chris Grayling, was fond of describing his disastrous privatisation of the probation services as a “rehabilitation revolution”, but his rather more credible successor, David Gauke, may be going to achieve such a thing for real. His proposal that “some sentences of over four years will no longer have to be disclosed to employers after a specified period of time has passed” is intended to boost the chances of former offenders finding a job following their release from prison. According to the Ministry of Justice announcement,
“Regular work is a major factor in breaking the cycle of crime but many ex-offenders find it impossible to get a job, with just 17% in employment a year after release from prison, and as half of employers would not consider hiring an ex-offender.
In addition to the rule change for longer sentences over four years, the period of time for which shorter sentences and community sentences have to be revealed to employers will be scaled back. The exact length of these ‘rehabilitation periods’ will be determined following discussions with stakeholders.
The proposed reforms recognise that the longer someone goes without committing a further crime, the lower the risk they will reoffend.”
However, the change will not apply to offenders whose crimes attract the most serious sentences, including life imprisonment, or for serious sexual, violent and terrorism offences. Moreover, says Gauke,
“While these reforms will help remove the stigma of convictions, we will never compromise public safety. That is why separate and more stringent rules will continue to apply for sensitive roles, including those which involve working with children and vulnerable adults.”
Northern Ireland abortion and LGBT rights
The UK parliament has taken two devolved matters, abortion and equal marriage, into its own hands and voted, subject to any restoration of the devolved government there, to bring Northern Ireland into line with the rest of the United Kingdom. If enacted, the change will have been achieved by way of amendments to the sadly all too routine procedural Northern Ireland (Executive Formation) Bill, whose original purpose was simply to extend yet again the time allowed for the devolved Stormont executive to re-form itself under under section 1(1) of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018. According to the Guardian:
In the first amendment, tabled by the Labour MP Conor McGinn, a longstanding campaigner for equal marriage in Northern Ireland, the Commons voted 383 to 73 to extend it to the region. In a vote soon afterwards, MPs approved an amendment by another Labour MP, Stella Creasy, to extend abortion rights to Northern Ireland, the only part of the UK where it remains illegal. The vote was passed by 332 to 99. Both were free votes as they were viewed as matters of conscience.
Stella Creasy in the second reading debate (Hansard 8 July 2019, col 107) made this point:
“We cannot argue that we are beacons of human rights around the world if we do not get our own house in order. We are told consistently by the international agencies that we have signed up to that we have a problem in Northern Ireland — in particular, that we are treating women there as second-class citizens. This Bill speaks to what we do in the absence of an Assembly that is able to fulfil those international obligations. If those obligations do not mean anything, what does this place do, when sometimes it has to speak for those whose voices cannot be heard?”
She also pointed (col 109) to the astonishing fact that, under the current law, “a woman in Northern Ireland who is raped, becomes pregnant and then seeks a termination faces a longer prison sentence than her attacker”.
Earlier, Conor McGinn explained (col 87):
“The Bill is not just about standing still. It gives the Government the power to introduce regulations by statutory instrument. It is an acknowledgment and an admission of failure by both Governments and the political parties to find an agreement.”
In view of the absence of such agreement, he went on,
“I have tabled an amendment on the extension of equal marriage to Northern Ireland, to bring it into line with the rest of the United Kingdom and, indeed, the rest of the island of Ireland. People in my constituency who love each other and who happen to be of the same sex can get married. If people in Cardiff, Edinburgh, London, Dublin, Cork and Galway can do so, why should people not be able to in Belfast?”
Reform under scrutiny
On 10 July 2019 the House of Commons Justice Committtee heard evidence from Lord Burnett of Maldon, The Lord Chief Justice, Sir Terence Etherton, The Master of the Rolls, and Sir Ernest Ryder, The Senior President of Tribunals on courts and tribunals reform. You can watch via Parliament TV.
John Hyde of the Law Society Gazette was unimpressed by their somewhat Panglossian view of the changes being wrought upon the justice system under their supervision.
He later wrote up his observations in a column, Top judges love modernisation — but how about the rest of us?
“Quite simply, in the face of gushing and unwavering support of modernisation from the three judges, someone should have asked this: When did you last set foot in a county court? When did you last grapple with a list of eight cases due to start at 10am? When did you last sit in a baking courtroom while lawyers and their clients wilted in front of you because the air con isn’t working?”
Not all judges are quite so gung-ho about the changes, and perhaps when they’ve retired they feel freer to speak about it: see, for example, Sir James Munby’s remarks about non-working court lifts and the like in a recent speech, reported on the Transparency Project blog: The family court in an era of austerity: problems and priorities. However, even Sir James is a fan of online divorce and financial dispute resolution.
Pushing for ODR
The promotion of online dispute resolution (ODR) may need a bit of a regulatory shove, thinks the Legal Services Board. The Solicitors’ Journal notes that a report from the LSB on international approaches to the application of technology in the legal sector “advocates mandatory online dispute resolution”.
“The report, The Use and Regulation of Technology in the Legal Sector beyond England and Wales, says: “If ODR is not mandatory, its use can be undermined by one party who refuses to co-operate”, adding: “This is a good example of how regulatory interventions can be vital to the take-up of technology.”
Produced by legal services consultant Alison Hook of Hook Tangaza, the paper is the first of a series of research papers commissioned by the Legal Services Board part of its ongoing project: Developing approaches to regulation for the use of technology in legal services.”
There are, however, no current plans to close any more physical courts, according to evidence given to the Justice Committee later in the same session by the Lord Chancellor, David Gauke, according to a report by Legal Futures.
Lost costs note fiasco
Meanwhile in other Ministry of Justice news it appears that some departments are not quite as efficient and digitised as they are pushing the courts to be. It transpires, as reported in the Law Society Gazette, that a hand written note of a crucial meeting with Sir Rupert Jackson, about extending the costs protections of ‘Arhus’ type environmental claims to judicial review cases generally, cannot now be found or retrieved. See MoJ can’t find key Jackson costs note.
“Public Law Project, a legal charity which brings strategic cases intended to increase court access, submitted a freedom of information request asking the ministry to disclose the minutes of the meeting. In response, the ministry’s disclosure team said: ‘The MoJ does not hold any information in the scope of your request. At the meeting handwritten notes were taken, rather than there being actual minutes (of which none were taken). These notes summarised the key points of the meeting, however due to the meeting being around two years ago, the handwritten notes cannot be located, despite a thorough search having been carried out’.”
Transparency: an open and shut case — or be careful what you wish for? Paul Magrath on three recent blog posts that have engaged with the pressing issue of transparency in the family courts, and the gap between our expectations of fair and accurate legal coverage and the sometimes harsh reality of journalistic scrutiny.
Attacks on the justice system do not come out of nowhere — it’s time for the UK to fight for openness by David Allen Green, on the failure of the courts to make information available to help the public understand what they do.
Stowe Family Law
A week in family law: Reform of marriage, divorce and civil partnership by John Bolch, considering recent developments and the prospects for change in matrimonial law.
Tips for Tweeting Lawyers, by CrimeGirl. Twitter offers many benefits for legal practitioners and trainees. But it’s easy to get carried away, and not everyone is as circumspect or discreet as they should be. In this guest post, the barrister who tweets as @CrimeGirl offers a handy list of hints.
A view from the front row — a barrister’s perspective of the family court’s mishandling of children cases involving domestic abuse, a guest post by Charlotte Proudman, a family law barrister at Goldsmith Chambers specialising in violence against women and girls. The post has prompted a large number of comments.
Why leadership magistrates should be representatives of the people in which Penelope Gibbs asks “Does judicial diversity still matter? The process of selecting candidates to be ‘leadership magistrates’ suggests not always.”
ICLR at AALL
Team ICLR (Kevin Laws, CEO, Daniel Hoadley, head of R&D, and Paul Hastings, account manager) are currently attending the Annual Meeting and Conference of the American Association of Law Libraries in Washington DC. The theme is this year’s event is “Capitalising on our strengths”.
We will report back on what’s going on there in due course. You can follow the conference on Twitter via the hashtag #AALL19.
You can meet the team at Stand 315 in the exhibitors’ hall.
Tweet of the week
is from a not fat cat with a not polite name (but nice resting wig):
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.