Weekly Notes: legal news from ICLR — 18 February 2019

A vision of justice (in Technicolor)

Crime and Punishment

Smart justice

Today the Lord Chancellor David Gauke set out his vision of a ‘smart’ justice system to reduce reoffending, protect the public and ensure serious criminals receive the punishment they deserve. It comes at an awkward time, when good news about prison reform in ten key prisons has just been hijacked by a fresh outbreak of rioting at another one.

First, the vision. This includes, unsurprisingly since it has been canvassed before, the idea of abolishing short (less than six month) sentences of imprisonment, on the basis that they don’t give enough time to actually have any effect; and instead to roll out a “robust community order regime”. The problem will be convincing the pit-bull press that they are not a “soft option”.

New technology will help here. Two days ago Gauke announced the national roll-out of new GPS tags which will provide 24/7 location monitoring of offenders. But new tech can also monitor whether an offender on license has consumed alcohol, where that might be a driver of offending.

Progress on overhauling the probation system was also promised in the vision, but not just yet. Again, the recent news that one of the privatised operators of Community Rehabilitation Companies (CRCs), to which Gauke’s predecessor Chris Grayling outsourced probation services for lower level offenders, has just gone into administration won’t have boosted confidence in the current system. Russell Webster reports on the financial collapse of Working Links on his blog: First private probation provider goes bust. One of its CRCs, Devon & Cornwall CRC was rated in a report last year as “inadequate” (the bottom of four rating bands).

Probation will need to get much better, or even “smarter”, if it’s to cope with the management of a rebooted community sentencing regime, in line with Gauke’s high hopes:

“I am determined to strengthen the confidence courts have in probation to ensure we can make this shift away from short custodial sentences towards more punitive and effective sanctions and support in the community.”

The Lord Chancellor is also looking at more effective punishment for those convicted of more serious crimes such as fraud, where the custody rate has increased from 14.5% in 2007 to over 20% now. He said he was looking at ways to “continue to restrict an offender’s movement, their activities and their lifestyle beyond prison in a much more intensive way”, including restricting their financial activities, spending, saving etc, using new technology.

Not so smart prisons

The prisons minister Rory Stewart offered to resign if, after a year, significant reductions in violence were not achieved at ten listed prisons. Last week, he hailed the “significant progress” made at those ten most challenging prisons, in the six months since launching the £10m project aimed at reducing violence and drug use while improving decency. Among the innovations introduced are x-ray body scanners to help search for drugs and the introduction of “incentivised substance free living” units. Announcing his six-month review, Stewart said:

“I promised that I would resign if violence did not start to fall within a year. There is still much to do, and I do not underestimate the scale of the challenge, but the first six months have given us a solid platform from which we can set a more positive direction for all our prisons.”

With unfortunate timing, one of the prisons not on the list, HMP Bedford, suffered serious unrest over the weekend, requiring the intervention of a specialist riot unit known as the Tornado Team. Bedford, which regulators have compared to a “dungeon”, was put in special measures last May and back in 2016 saw serious rioting involving 230 prisoners causing £1m of damage to two wings. This weekend’s disturbance was confined to one wing and there were apparently no casualties, according to the BBC. It notes:

A report from the prison’s independent monitoring board in October said prisoners had effectively taken control at the 487-capacity men-only jail.

It found that prisoners regularly ignored rules; the smell of drugs was “pervading” some wings; and the segregation unit had a “consistent infestation of cockroaches and a plague of rats”.

“The unit is simply appalling. It is a dungeon. These are not appropriate conditions in which to detain prisoners in the 21st Century,” the report said.

Parole board review

Earlier this month, the Ministry of Justice published the findings of a Review of the Parole Board Rules and Reconsideration Mechanism (CP 29)following a comprehensive review ordered in the wake of the flawed release decision in relation to notorious rapist John Worboys (See Weekly Notes — 22 January 2018.) An earlier Review of the law, policy and procedure relating to Parole Board decisions (Cm 9611 ) was published in April last year, promising greater transparency and consultation on other improvements.

This latest review follows on from that. It looks at the Parole Board Rules and includes a commitment for a new reconsideration mechanism so if there is a seriously flawed release decision by the Parole Board it can be looked at again without the need for judicial review. Other key points include

  • The Parole Board will publish clear procedures and standard practice to support quality and consistency in decision making.
  • Further improvements to engagement with victims and the commitments in the Victims Strategy will be delivered.
  • A new operational protocol between the Parole Board and Her Majesty’s Prisons and Probation Service (HMPPS) will clarify roles and responsibilities within the parole system.
  • A new policy framework, published by HMPPS, will implement improvements to timescales which the review found could make the process more efficient.
  • A new Rules Committee will keep the Rules under review and enable quicker future changes if needed.

Media law

Cairncross review

A major review of the future sustainability of “high quality” journalism conducted at the behest of the Department for Digital, Culture, Media and Sport, has now issued its report, The Cairncross Review: a sustainable future for journalism.

Chaired by Dame Frances Cairncross, the review was launched in March 2018, with a panel of advisors, mainly from journalism and media consultancy backgrounds (academics were notably absent), and terms of reference including “to examine the current and future market environment facing the press and high quality journalism in the UK”, and “to make recommendations on whether industry and/or government action might be taken to ensure a financially sustainable future for high quality journalism”.

There were 760 responses to its consultation, which ran from June to September 2018, including one from the Transparency Project, which republished a post by Judith Townend (Could Cairncross help public interest law reporting?) commenting on the final report.

“Cairncross identifies court reporting as one area in decline and in need of particular support. The overall result, published on the 12th of February, is a 157 page report with nine key recommendations to Government including:

New codes of conduct to ‘rebalance’ the relationship between online platforms and publishers;
– Investigation of the workings on the online advertising market to ensure fair competition;
– Regulatory supervision for online platforms’ efforts to improve users’ news experience;
– The development of a media literacy strategy;
– Assessment of the BBC’s market impact and role;
– Provision of Innovation funding;
– New forms of tax relief;
– Direct funding for local public-interest news;
– The establishment of an Institute for Public Interest News.

One of the proposals discussed in the report is the charitable funding of public interest journalism, which Townend regards as “encouraging”, though there are “numerous practical and legal obstacles”. Court reporting is a key concern for the Review, she notes, “ within the broader category of public interest journalism”. While the court modernisation (HMCTS Reform) programme offers opportunities for increased public access to information about court proceedings, there remains a need for this to be properly considered and widely consulted upon. But one of the main obstacles to progressive policy-making remains the government’s tendency to be “heavily swayed by the large newspaper groups”.

You have only to see what happened to the Leveson Inquiry to see exactly what she means. Citing the House of Lords Select Committee on Communication report on the Future of Investigative Journalism in 2012 she points out how

“Cairncross’s recommendations on public interest journalism support are not so very dissimilar from those made by the House of Lords committee in 2012: what will make the Government take the proposals seriously this time?”

Trust or the lack of it is clearly critical. In her executive summary, Cairncross points out the “many national news publishers are viewed by the public with some mistrust (although mistrust for social media is much greater)”. This may be in part to do with the change in how people consume news (which in turn makes them more vulnerable to misinformation and ‘fake news’):

“Moreover, the switch to online has changed the way people find news and the way they absorb it. They are much less likely to see the mixed bundle of politics, finance, entertainment and sport that constitutes many papers, and more likely to see an individual story, chosen by a computer program and not necessarily clearly labelled with the name of a particular publisher. This ‘unbundled’ experience has implications for the visibility of public-interest news and for trust in news.”

We haven’t had time to read the whole report. But others have, including:

Steven Barnett, via Inforrm’s blog, Cairncross review: two cheers and two fears for the future of UK journalism who also highlights the possibility of extending charitable status to non-profit publishers

Brian Cathcart, via Byline, The Cairncross Report: what it says and first impressions, who, like Barnett, discusses the creation of the new Institute for Public Interest News as a source of subsidy and supervision. But he echoes Townend’s anxiety about what he calls the risk of “manipulation by corporate press bosses and their ministerial friends”. His article also carries an interesting footnote about the consultation:

On the subject of vigilance, the report provides a summary of the public responses to the Review’s call for evidence last year. On page 145 you will find the following:

Approximately 85 per cent of the responses to the Call for Evidence were from the general public, and the large majority of those appeared to have been directly prompted by an article by Brian Cathcart, Professor of Journalism at Kingston University and founder of Hacked Off, a press campaigning body, claiming that the review was a vehicle for Government to subsidise the national press, by “pav[ing] the way for the delivery of public subsidies to the Daily Mail, the Sun, the Mirror and the rest of the national and corporate press”.’

If you were one of those who wrote in, and you really were prompted to do so by my article on Byline, then thank you.

Press Recognition Panel report

The Press Recognition Panel (PRP) has published its latest annual report on the UK’s system of independent press regulation. There is currently only one approved regulator, IMPRESS, and a number of relevant publishers are not regulated (even by IPSO, some newspapers’ own rival [self-]regulator). According to the PRP’s announcement,

The report notes that the boundaries between the press and some social media platforms is dissolving and that there is an ongoing national debate over how to regulate social media platforms.

It quotes the chair of the PRP, David Wolfe QC warning:

“Ironically, some news publishers are calling for tougher regulation of the likes of Google, Facebook and Twitter despite themselves avoiding independent regulation. A potential consequence of this is that a system of state regulation for social media platforms could subsequently be applied to the press.

This links back to the Cairncross Review (above) and its convassing of the idea of better supervision of social media news distribution.

Family law

Transparency and the Tickle Appeal

On Friday the Court of Appeal held a preliminary hearing in the appeal of a journalist, Louise Tickle, against a reporting restrictions order (RRO) in a child care case which she wanted to report. She wasn’t the only one, and the BBC successfully applied to be joined as an intervener. Although this hearing was mainly for directions, having heard counsel for all the parties, the court (Sir Andrew McFarlane, President of the Family Division, and Lady Justice King) decided to allow the appeal without the need for a further hearing, and on the undertaking by the President that some of the issues would be dealt with by way of practice guidance rather than a court decision.

The most important of these was the question of the procedure to be adopted when an accredited journalist or legal blogger attending a private hearing in a family court wished to challenge or seek to relax the automatic statutory restrictions normally imposed on reporting proceedings. Applications to impose or extend restrictions tend to be involve formalities, such as notice to the media, in part because they limit freedom of expression and require to be justified under the Human Rights Act 1998. The same considerations need not apply to a relaxation of the restrictions, and the procedural burden on journalists, who in most cases will not be legally qualified or represented, would be considerable. Such a process impedes transparency, the President observed in argument. (In this regard, he pointed out that the legal bloggers pilot had been informative because those participating tended to be barristers and could spot infelicities in procedure which a journalist might not.)

The problem is the present case was that the judge appeared to have imposed restrictions without properly considering and balancing the right to freedom of expression and the public’s right to know, on the one hand, against the right to private and family life, and the risk of ‘jigsaw’ identification on the other. The court accepted that the mere existence of such a risk was not simply a button to be pushed, mandating restriction in the absence of evidence to substantiate the risk. The balancing exercise still had to be performed.

Among those in court were two of the three authors of Transparency in the Family Courts by Doughty, Reed and Magrath (Bloomsbury Professional, 2018), who were duly gratified to hear the President (who, it is fair to point out, wrote the foreword) tell the court how “useful” it was. He also made a point of praising the lawyers who had acted pro bono for various parties.

The short judgment given extempore by the President, with whom King LJ agreed, has been reported by Sarah Phillimore (who acted pro bono for Tickle, led by Paul Bowen QC) on her Child Protection Resource blog: In the Court of Appeal — Reporting Restrictions Order in Care Proceedings.

There is also a report on the Transparency Project blog, Tickle’s Triumph — an independent journalist succeeds in her appeal to secure the right to report on a family case — and prompts new guidance

The case was live-tweeted throughout and, following the decision, the BBC was able to report the actual case before the judge: The mother who lost her daughter over an EpiPen

The case also prompted a leader in the Guardian: The Guardian view on family law: transparency is in the public interest

and a story in The Times: Top family judge vows to clarify reporting restriction rules (£)

and in the Press Gazette: Judge to issue new guidelines on challenging reporting restrictions in family courts after journalist’s appeal win

Terrorism

Repatriation of ISIS bride

A lot of relatively hot air has been expended on the question whether a British citizen, Shamina Begum, aka the “Bethnal Green Isis Bride”, should be allowed to return to the UK with her baby, after running away with two other teenage girls to Syria to join the Islamic fundamentalists fighting to establish a caliphate there. Some of it has been spectacularly ill-informed, if not ill-intentioned.

Thankfully, there is someone who does know what he’s talking about: Matthew Scott, on his Barristerblog, has asked in some detail, with reference to the relevant law, Can the Home Secretary prevent Shamina Begum returning to the UK?

It is of some concern, however, that he notes:

“In normal times we could simply ask the Independent Reviewer of Terrorism Legislation Terror Watchdog — Lord Anderson QC or Max Hill QC were the most recent holders of that office — but the post is currently unfilled, so perhaps a note of confusion has crept into the press coverage.”

Hill is now the DPP and Lord Anderson is now a cross-bench peer in the House of Lords, where his maiden speech concerned the impact of referendums on parliamentary democracy. Meanwhile, no replacement has yet been appointed, at a time when terrorism legislation must be much in need of watchdogging, or dogwatching, or whatever you call it.

There is also a piece on Free Movement, Deprivation of citizenship and “ISIS bride” Shamima Begum…and her baby, which discusses the options for temporary exclusion and permanent deprivation of citizenship.

Meanwhile, there is the question of the baby, whose rights must be independently reviewed as well. On this, Fatima Ahdash offers a welcome legal perspective on what she calls “an overlooked aspect of the debate” via the LSE blog: What could happen to Shamima Begum’s child? A Family law perspective.

She points out that, quite apart from what the mother might face in terms of criminal investigation etc, in a number of previous cases where a mother has travelled to ISIS-held territory in Syria, “the family courts have sanctioned the most draconian of family law orders: the compulsory removal of the child from the care of his or parent — usually the mother”.

Crime

CCRC review

The Ministry of Justice issued a Tailored Review of the Criminal Cases Review Commission earlier this month. According to the MoJ, “This report concludes that the current delivery model of the Criminal Cases Review Commission remains appropriate and that the majority of its functions are still required.” It makes a number of recommendations.

But on the Justice Gap, Will Bordell is not so sanguine. He is concerned at the falling numbers of referrals to the Court of Appeal, and takes issue with the statement of Helen Pitcher OBE, as chair of the commission, that sending cases back to the Court of Appeal was ‘not the be-all-and-end-all’ of its work.

“The CCRC was set up as a direct result of a royal commission launched on the day that the so called Birmingham Six were set free. The Runciman commission called for a new body to ‘consider allegations put to it that a miscarriage of justice may have occurred… and, where there are reasons for supposing that a miscarriage of justice might have occurred, to refer the case to the Court of Appeal’.”

ICLR News

Family legislation previewed

A number of changes in marriage and divorce law seem poised to be made by proposed legislation. In three linked posts on the ICLR blog lasts week, we took a quick tour round some of the bills awaiting consideration by Parliament.

What next in family legislation? Part 1: Divorce

What next in family legislation? Part 2: Marriage

What next in family legislation? Part 3: Civil partnerships

Tea at the Writs

According to a certain sarcastic observation, ‘in England the law courts are open to all — just like the Ritz Hotel’. Paul Magrath on the Bloomsbury Professional blog decided to investigate the comparative cost of litigation as against visiting the Ritz hotel, where he enjoyed (in the interests of research) afternoon tea. The Ritz Hotel is open to all — just like the law courts

Child protection book reviewed

Not content with acting pro bono as junior counsel, drafting the grounds of appeal and live tweeting from the actual hearing of Louise Tickle’s appeal (see above), Sarah Phillimore of St John’s Chambers in Bristol also contributed a review of the recently published new edition of Child protection and the Family Court, by McFarlane, Reardon and Laing, which you can read on the ICLR blog.

Dates and Deadlines

Bridget Lindley Memorial Lecture

Bristol Central Family Court at 4.30pm on 27 February

Louise Tickle will be delivering her lecture and will also talk about her successful appeal against wrongly imposed reporting restrictions (see above). FREE, but please book via jerry.fowler@Justice.gov.uk

Reminders

Great Legal Bake 2019: 25 February to 1 March 2019

ICLR is baking. You can donate via our event page on VirginMoneyGiving.

Temple Women’s Forum: How Far Have We Come? 28 February 2019 at 5.30pm onwards — Inner Temple, London

Open to: Members of the four Inns and Solicitors. BOOK HERE

And finally…

Tweet of the week

… is probably out of date already, because the one thing about Brexit is that (like the Red Queen in Alice in Wonderland, or pretty much any piece of music by Philip Glass) things are perpetually moving while also remaining frustratingly no further on than they were before.

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.

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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.

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The ICLR

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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.

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