Weekly Notes: legal news from ICLR, 18 January 2021

Photo by Arron Choi on Unsplash

Legal Professions

Hong Kong: ethical considerations for Bench and Bar

The propriety of an English barrister, David Perry QC, participating in the prosecution, in Hong Kong, of those involved in recent pro-democracy protests in the territory, has given rise to criticism from other lawyers and politicians.

Although theoretically Hong Kong is a separate jurisdiction from mainland China, no one looking at the matter objectively could seriously believe that the authorities in Hong Kong are acting independently, given the recent conduct of the mainland People’s Republic of China (PRC) government — notably in imposing a new National Security Law in Hong Kong, which was adopted without any meaningful prior consultation of Hong Kong’s Legislative Council and civil society. (See Weekly Notes, 13 July 2020.) The new law threatens the independence of the judiciary by allowing Hong Kong’s chief executive to appoint judges to preside over national security related trials. Previously all judicial assignments were managed by the judiciary themselves.

The prosecution in which Mr Perry is participating is not one brought under the new Security Law but under existing Hong Kong legislation. Under the Basic Law agreed before the handover of Hong Kong back to the PRC in 1997, Hong Kong’s legal system (based on the English common law system) was to remain independent for a period of 50 years, but recent political events and evidence of interference from the PRC government have increasingly threatened that independence. So even if this prosecution of the protesters is brought under the existing law rather than the National Security Law, its genuine prosecutorial independence may still be questionable. Nevertheless Perry’s appointment (which apparently required approval from the chief judge of the Hong Kong High Court), while potentially lending a sheen of legitimacy to an otherwise murky proceeding, may yet be the best guarantee of prosecutorial fairness and propriety.

Moreover, he is by no means alone in lending professional support to the Hong Kong legal system. Judges are doing it too. As Prof Richard Moorhead points in a Lawyer Watch blog post on the matter (Hong Kong Questions), “it might be difficult to criticise [Perry] for working with a system which UK judges still participate in at the end of appeal stages”. He cites a statement by Lord Reed, President of the Supreme Court, on the Role of UK judges on the Hong Kong Court of Final Appeal, in which Lord Reed explained that they do so “as part of the UK’s continuing commitment to safeguarding the rule of law in Hong Kong”. However, Reed added:

“Whether judges of the Supreme Court can continue to serve as judges in Hong Kong will depend on whether such service remains compatible with judicial independence and the rule of law.”

He quoted the then Chief Justice of Hong Kong, the Hon Geoffrey Ma (who has since retired), saying:

“The independence of the Judiciary and the rule of law are cornerstones of the Hong Kong community, and they are guaranteed under the Basic Law. It remains the mission and the constitutional duty of the Hong Kong Judiciary to maintain and protect them.”

In a statement marking his retirement earlier this month the Law Society of Hong Kong praised Chief Justice Ma for his leadership of the judiciary in Hong Kong and noted that “Attempts to politicise some of the court’s work in recent years have presented challenges to the perception of judicial independence, a core value of the rule of law.”

Last month the Law Society expressed grave concerns over an incident involving intimidation of the Chief Magistrate and his family members who had received a death threat. In response to that, the Commonwealth Lawyers’ Association (CLA) issued a Statement regarding judicial intimidation in Hong Kong, urging the authorities in Hong Kong to “investigate any threats to the Judiciary and the legal profession”; and to “uphold recognised international principles to ensure an impartial and independent judiciary and legal profession”.

Both Dominic Raab, foreign secretary, and Robert Buckland, justice secretary, have raised concerns about the risk of British judges facing “inappropriate pressure” while sitting on Hong Kong’s court of final appeal. More recently the shadow Attorney-General and former Lord Chancellor, Lord Falconer of Thoroton, said of Perry’s acceptance of the prosecution brief in this case: “He must withdraw as he cannot continue in that role and remain consistent with the values of the UK. He is prosecuting some of the most well-known democracy campaigners.”

Assuming the case goes ahead, depending on the result, presumably there remains a chance that it will end up before a British judge on appeal.


Safe system of work?

The Times reported last week (Covid strikes down 69 judges amid chaos in courts and jails):

“Covid has taken its toll on the courts, with 599 court users and staff — including 69 judges — in England and Wales testing positive for the virus in the past seven weeks. Covid cases have been detected at 196 courts across England and Wales in that time and threaten to increase the growing backlog of cases. Infected prisoners are appearing at court before their Covid test results are in, putting lawyers and court staff at risk. The situation has seen hearings across the country halted abruptly and courts shut to be cleaned.”

Repeated assurances from HM Courts and Tribunals Service and senior judges have been treated with increasing scepticism by practitioners. The Criminal Bar Association (CBA), in the response last month of its Working Group on Court Capacity to the HMCTS proposal for extended operating hours (EOH) to deal with the Covid backlog, pointed out:

“Government owes a duty of care not to impose unsafe working conditions or create unsafe public buildings. A number of courts have already been afflicted by covid cases, as have some prisons. Public health safety must be the paramount consideration and EOH is incompatible with that public priority.

Regrettably HMCTS to date has not earned the trust of the professions having a track record for public health failings:

— PPE has only just been introduced to cells, cell staff having worked throughout lockdown and across the summer months with no PPE provided / enforced and in close proximity to barristers and defendants entering and departing the cells where social distancing is often impossible.

—The operation of City of Westminster Magistrates Court was recently strongly criticised and remains under review by the Health and Safety Executive for working practices which fail to take account of the risk of virus transmission. HSE reiterated the warning of courts having the potential to operate as sources of transmission not only for staff, but to the general public.

— There were recent reports of a ‘walk out’ by lawyers at Bristol Magistrates Court after remote hearings were withdrawn and concerns were raised that HMCTS had failed to provide for adequate social distancing, WiFi in the cell area, Covid compliant meeting rooms, risk assessments or ventilation.

We do not have confidence that HMCTS is the right organisation to conduct a public health assessment of the impact of EOH on transmission rates. We have seen no independent assessment.”

Last week the Law Society issued an Urgent action call for courts as COVID safety fears grow, saying they had written to HM Courts and Tribunals Service and the senior presiding judge, outlining fears about the safety of members and other court users, in light of the new more transmittable coronavirus variant, and suggesting a two-week pause of all Crown Court and magistrates’ court non-custody work, and a move to video-by-default for all criminal courts. They said:

“Since the third national lockdown was announced we have received a significant amount of feedback from our members expressing serious concerns about the safety of court buildings, despite assurances from HMCTS that they are COVID-secure for the new variant.”

There is also a Report of Court Safety (January 2021) from the Western Circuit, which states that “many criminal practitioners no longer feel safe to attend criminal courts across the Western Circuit.” The report gathers feedback from practitioners and

“aims to identify common unsafe practices in the hope that HMCTS might remedy them on the Western Circuit and beyond; to explain why the Bar is so concerned to those who consider courts to be safe zones; and to inform decision-making about what business the courts should be conducting in this stage of the pandemic.”

Despite this, HMCTS continue to maintain that courts are safe. They have issued updated (on 15 January 2021) guidance on attending hearings during the coronavirus pandemic. And their CEO, Kevin Sadler has contributed a post to the Inside HMCTS Blog, Working together in the safest way possible to keep justice going in which he urges all court users to be vigilant and follow government “hands / face / space” advice. He asserts that:

“There has been no evidence that our sites are unsafe — independent Public Health advice indicates that community transmission is the most likely source of the vast majority of cases where court and tribunal users have tested positive. Where Public Health England/Public Health Wales identified a small handful of possible in-court transmission it found that these were likely to be a result of individuals — not all of them court staff — breaching hands-space-face guidance.”

One thing a lot of lawyers on Twitter have commented on is inconsistency in the policy as regards facial coverings worn (or not) in court. Sadler now says:

“Since the new strain of the virus and the increased transmissibility, we are supporting the Senior Presiding Judge’s guidance to the judiciary in support of the Lord Chief Justice’s message which included encouraging use of face coverings in court rooms.”

The general HMCTS guidance says, in regard to face coverings,

“If you are presenting evidence in the courtroom, the judge or magistrate may also ask you to take your face covering off temporarily. If you need to communicate with someone who relies on lip reading, facial expressions and clear sound, they may ask you to take your face covering off.”

The obvious point has been made that it is precisely when speaking that a mask is most effective in preventing the spread of aerosol particles from the speaker, although other mitigations such as plexiglass screens or transparent visors may be almost as effective.

In his message on 5 January 2021 the Lord Chief Justice, Lord Burnett of Maldon seemed to be suggesting that, whatever measures were in place, physical court hearings should be avoided unless no alternative course of action was available:

“No participant in legal proceedings should be required by a judge or magistrate to attend court unless it is necessary in the interests of justice. Facilitating remote attendance of all or some of those involved in hearings is the default position in all jurisdictions, whether backed by regulations or not.”

See also: Dates & Deadlines (below).

Data protection

Accidental deletion of suspect data

The Home Office admitted last week that a significant amount of data had been lost from the Police National Computer as a result of human error during a routine housekeeping procedure. The initial loss was thought to be about 150,000 records relating to people who were arrested and then released without further action. However, The Register is now reporting that “Estimates detailing the loss of criminal evidence records by the UK Home Office and the police show the figure leaping from 150,000 to 400,000.”

They refer to a letter published by The Guardian, in which National Police Chiefs’ Council (NPCC) deputy chief constable Naveed Malik, lead for the organisation on the Police National Computer (PNC), said approximately 213,000 offence records, 175,000 arrest records and 15,000 person records had potentially been deleted in error. The Home Office issued a press release saying Home Office engineers were working throughout the weekend to try to restore the missing data, and that “Both the Home Secretary and Policing Minister are being kept regularly updated on this process”.

According to the Register, the current iteration of the PNC is held on a Fujitsu mainframe computer based in a Hendon data centre. As it happens, the Horizon computer system used by the Post Office, which was at the centre of a scandal that saw subpostmasters blamed for accounting shortfalls that were caused by errors in the system itself (see Weekly Notes, 14 December 2020), was also provided by Fujitsu.

Planning law

A statute for statues?

The secretary of state for housing, communities and local government, Robert Jenrick, has suggested in a stridently worded article in that former newspaper, The Daily Telegraph, that statues and public monuments should enjoy the same protection from destruction — whether at the hands of baying mobs of “woke” historical revisionist militants or simply of careless or corrupt local planners and developers — as listed public buildings and conservation areas.

“Any decision to remove these heritage assets will require planning permission and councils will need to do so in accordance with their constitution, after consultation with the local community.”

His department has announced the new policy as being “The most significant new protection for England’s heritage since the 1967 Civic Amenities Act established Conservation Areas.”

This is obviously a response to the events last year in Bristol, where a statue of a public benefactor who had made his fortune in the slave trade was torn down by protesters supporting the Black Lives Matter movement (see Guardian, BLM protesters topple statue of Bristol slave trader Edward Colston) and to the refusal by Oriel College, Oxford some years ago to remove a statue of the academic benefactor Cecil Rhodes which had been the target of the Rhodes Must Fall campaign objecting to his legacy of imperial exploitation (see Guardian, Cecil Rhodes statue to remain at Oxford after ‘overwhelming support’). Jenrick’s article also alludes to the fact that some statues of Confederate leaders in the United States have recently been removed or torn down in response to BLM protests, by reason of their involvement with slavery.

Given that his own department has rather more pressing matters to focus on — notably the cladding scandal relating to the large number of residential buildings blighted by sub-standard and often dangerously inflammable cladding, as revealed by the Grenfell Tower fire, despite apparent compliance with the existing planning approval and building inspection regime, causing financial misery and untold anxiety to tens if not hundreds of thousands of people — you might think this obsession with a law to protect statues was, well, a monumental folly. However, we live in strange times, when a senior member of the government can respond to the complaints of fishermen who cannot catch or sell their fish by reason of the unfavourable terms of the Brexit deal and its aftermath, that, never mind, the fish are better and happier being British! So a certain amount of titanic government frivolity must be accepted as part of the current social contract.

But, says David Allen Green in a post on his Law and Policy Blog (Suppose the government wanted a culture war and nobody came?), even if there is some “political reason for this to be a policy priority, the proposal makes no sense”. Statues, he points out, are already protected by law:

“First, they are protected in respect of theft and damage by the general law of the land, as can be shown with the prosecutions of those who put the statue of a slave trader into Bristol harbour.”

And secondly:

“Most statues of any note are already protected as listed buildings and so are subject to additional conditions in respect of their removal or modification.”

Whether they ought to be listed buildings is another matter. He cites an article, Edward Colston: Listing Controversy by By Prof Antonia Layard of the University of Bristol Law School, arguing that statues should not be under the same conservation regime as other structures, but doubts if such a rationalisation is the motivation behind the secretary of state’s apparent desire to join a “culture war” with the forces of wokeness.

Human Rights

Call for evidence to HRA Review

The Independent Human Rights Act Review has formally issued its public call for evidence, as of 13 January 2021. The Terms of Reference have been published. The Call for Evidence closes on the 3 March 2021. The review will report back in Summer 2021, putting forward options for reform, for consideration by the Lord Chancellor.

In his introduction to the Terms of Reference, chair Sir Peter Gross says:

“The HRA has now been in force for 20 years and it is timely to review its operation and framework. The Independent Human Rights Act Review (IHRAR) has been established to carry out that review. It is explicitly independent and contains a robust panel of eminent lawyers and academics, each one of whom will provide a range of views on the HRA’s operation. The Review’s Terms of Reference (ToR) focus on the operation of the HRA. They are not concerned with either the substantive rights contained within the Convention or with the question whether the UK should remain a signatory to it; the Review proceeds on the basis that the UK will remain a signatory to the Convention. The ToR have been drafted in neutral terms. The Review has no pre-conceived answers and intends to examine all the questions within the scope of the Review comprehensively. In doing so, the panel wants to consult widely and encourages the widest possible range of views from the public and interested parties in its consultations, across all four nations of the UK.”

Dates and Deadlines

Kalisher Essay Competition 2021

The 2021 Kalisher Essay Competition, which will carry a substantial prize of £2,000, is open to all pupils currently undertaking a criminal pupillage. The pupil’s Chambers must sponsor each entry in the sum of £100. Entries will be assessed by a Kalisher Trustee and a member of its Senior Counsel group, who will select one winner. Entrants are asked to write up to 2,000 words on the following question:

“Covid19 lockdown rules have been described by some as among the most onerous restrictions to personal liberty since Oliver Cromwell’s time. As a ‘government lawyer’ advise your Minister as to the pros and cons of any submission that recent public health legislation is a disproportionate breach of human rights law”

Please send essays (as PDF) with entrant’s name and their Chambers’ name included in the document, to administrator@thekalishertrust.co.uk by 5pm on Friday 12 March 2021.

Online event: Court safety for legal professionals

Thursday, 21 January 2021 — 17:00–18:00 GMT

This webinar will provide information on the measures HMCTS has put in place to ensure the safety of court staff, judiciary and all who attend courts and tribunal buildings; and to address the understandable concerns about safety at this critical juncture. The panel will include:

  • Paul Harris — Director of Operations, HMCTS (Host)
  • Craig Robb — Deputy Director, Governance and Assurance, HMCTS
  • Mark Evans — Deputy Director, COVID-19 response unit, HMCTS
  • Mark Stewart — Acting Courts and Tribunals Director, HCMTS
  • Will Breame — Deputy Director, COVID-19 Response & Recovery, Central Operations and Tribunals Scotland, HMCTS
  • Sam Bolton — Head of Technical Services & Assurance, HMCTS

This session is aimed at legal professionals and will last for 45–60 minutes. Booking via Eventbrite. You can submit questions during the event, or in advance by emailing changesomethingthatmatters@justice.gov.uk.

And finally…

Tweet of the week

is from the Court of Appeals of Georgia, marking MLK day:

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.



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