Weekly Notes: legal news from ICLR, 2 August 2021
This week’s roundup includes vacation courts and extended operating hours, a pilot that has finally landed, and some other recent legal news and commentary, as well as the latest reported cases.
Vacation sittings and extended operating hours
Given our 24/7, 365-day working culture, the idea of court sittings being organised into terms seems ever more remote. And given our remote working online culture, even the idea of sitting in court is beginning to seem rather quaint. Be that as it may, the fiction of Law Terms continues, and (as of 30 July) we have now ended the Trinity Term and must await the commencement of the Michaelmas Term on 1 October.
In days gone by, court sittings outside London took place in the form of a sort of travelling show, known as the Assizes, grandly opened in each major provincial town with a display of civic pomp and pride, including a mayoral procession and much dressing up of assembled dignitaries, before the dressing down, as one might say, of the assembled crooks and felons, awaiting the judgment of their peers represented by the assembled local jurors. Serious cases were assigned to Quarter Sessions, lesser ones to the Petty Sessions — a jurisdictional divide now reflected in the distribution of cases between the Crown Court (established to replace the old system in 1971) and Magistrates’ Courts. The idea of courts being held periodically around the country dates back into the Middle Ages, to the dawn of the common law, and reflects the medieval practice of the monarch holding court at different locations.
The division of the legal year into terms is a remnant of that peripatetic periodicity. Judges still go out on circuit, but the pomp and catering has been cut back somewhat, and now many of the physical court locations have been closed, reducing still further the local administration of justice. For many courts these vacation times between the terms, particularly the long summer vacation period, are a time of relative quiet. But even the most senior courts hold some sittings during the lull, in what are known as “vacation courts”, usually for urgent business that cannot wait. More junior courts continue without interruption. The term dates for the legal year officially apply only to sittings in the High Court and Court of Appeal, though the Supreme Court also follows the same calendar.
Just when you thought you could relax a bit, however, HM Courts and Tribunal Service have raised yet again the spectre of what they call Covid Operating Hours— a plan to extend court sitting times to accommodate more hearings in fewer courts. It seems to be a version of something previously canvassed under the name of Flexible or Extended Operating Hours (FOH or EOH) and can also bear the exciting new label of Temporary Operating Arrangements (TOA). But basically it involves sitting earlier and later than the usual court hours of 10 am till 4.30 pm, not in order to have one super-long day for everyone, but instead to have two or more hearing sessions in the same day.
There have been pilots and consultations, and generally speaking the legal professions, represented by organisations like the Bar Council, Law Society, Criminal Bar Association et al, have been against it, as have numerous individual practitioners who have responded to consultations and commented on the matter. But the powers that be (HMCTS and the Lord Chancellor) seem to think court users (litigants, presumably, rather than practitioners) are in favour. Judges may feel pressured to support it, and court staff must presumably go along with it too, but the real point seems to be for court managers to maximise the utility of the court as a fixed asset.
Many of the objections to the practice are based on the idea that legal practitioners don’t just spend their day in court, and much of their time is spent in preparation for hearings, consultations, etc. If hearings can take place at any time of the day or night, this increases their exposure to work demands and reduces their options for a proper work-life balance and time for family and caring commitments. That, in turn, impacts on diversity in the profession. The court managers can say that it’s not about longer hours, just different ones, but the fact remains that your exposure to the risk of a demand for attendance is massively increased, and your capacity to limit your time “on call” is massively reduced.
There are other objections, and other justifications, but the fact that a hearing can now be remote, reaching like a tentacle into your own home, is not something that makes it any easier for a practitioner in search of a better work-life balance.
- HMCTS: Consultation on ‘COVID operating hours’ in Crown Courts
- HMCTS: Flexible operating hours evaluation plan and summary
- Monidipa Fouzder, Law Society Gazette, HMCTS admits ‘temporary operating hours’ could discriminate against women
- Neil Rose, Legal Futures: Longer court hours re-emerge despite concerns over impact
Legal Bloggers scheme goes permanent
What began as a pilot, proposed by the Transparency Project in 2017, given cautious approval from the Family Procedure Rule Committee back in 2018, and implemented by Practice Direction 36J, has now been enshrined in the FPR as a small but permanent expansion of the limited open justice available in the family courts.
The Family Procedure Rules (Amendment No 2) Rules 2021 provides by para 10 for the amendment of FPR rule 27.11, which governs attendance at private hearings. Since 2009, under what is now r 27.11(2)(f), “duly accredited representatives of news gathering and reporting organisations” may attend private hearings in family courts, though subject to stringent restrictions as to what they can report. The amendment adds a new sub-para (ff) under which, in addition, “a duly authorised lawyer attending for journalistic, research or public legal educational purposes” may attend such hearings, and write about them subject to the same stringent restrictions (which in practice often means clearing whatever they write with the court first). The change comes into effect on 1 October 2021.
The purpose of the scheme was to enable lawyers and legally qualified individuals working for educational (including public legal educational) and research purposes to gain admittance to hearings and write about them, a practice loosely categorised as “legal blogging” in contrast to media reporting. One of the aims of the pilot was to expand the coverage to include routine cases that might not merit media attention, but would still expand knowledge and awareness, and scrutiny, of a corner of the justice system often castigated (sometimes fairly) for being overly secretive.
As it happens, most of the legal blogging under the pilot has been done by or under the aegis of the Transparency Project, whose website provides background information and forms and relevant posts here. See also, on their blog: If you don’t like the rules, change ’em.
Gratifyingly, the pilot was one of the things for which justice minister Lord Wolfson made a point of thanking the Transparency Project when responding to a request to correct parliamentary answers given by another minister in his department: see Minister for Justice thanks The Transparency Project.
Incidentally, the expression “legal blogger” is now also routinely being used in official communications, such as the Daily Cause Lists, as a category of person other than a media reporter wishing to attend a remote hearing. It’s not clear to what extent this was a defined term before the pilot.
(Note that Paul Magrath of ICLR, who compiles this roundup, is also a trustee and regular blogger for the Transparency Project.)
Future of Legal Aid report
The Commons Select Committee on Justice has published its report on The Future of Legal Aid (HC 70). Its purpose was “to set out the core problems within the current legal aid framework and to identify the solutions that could improve the long-term future of legal aid”.
In relation to criminal legal aid, “the Committee heard concerning evidence from legal aid providers, especially criminal defence solicitors, over the sustainability of the profession” and found there was “an urgent need to overhaul the current system so that providers are paid for all the work they do to support their clients, especially at the early stage of the process”. Reform should prioritise a “whole justice system approach”.
In relation to civil legal aid they said “there is a real need for a more flexible scheme that allows anyone with a legal problem, who cannot afford a lawyer, to access early legal advice” and concluded that the system “should be made more flexible, so that a greater number of organisations can be provided direct support and to ensure that there is a consistent pipeline of legal aid lawyers that are able to help the most vulnerable in society”.
They also said the Legal Aid Agency, which was accused of having a “culture of refusal”, needed to adjust its priorities. It should “place more trust in providers” and “reduce the amount of unpaid administrative work they are required to do”.
- Jon Robins, The Justice Gap: Concerns over viability of legal aid sector ‘sufficiently serious’ to justify ‘complete overhaul’
- Family Law Week: Legal aid needs urgent reform to secure fairness of the justice system: Commons Justice Committee
- Monidipa Fouzder, Society Gazette: MPs sound alarm over legal aid in hard-hitting report
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.3:
CHILDREN — Inherent jurisdiction — Secure accommodation: In re T (A Child) (Association of Lawyers for Children intervening), 30 Jul 2021  UKSC 35;  WLR(D) 428; Press summary, SC(E)
COSTS — Statutory review — Permission application: Campaign to Protect Rural England (Kent Branch) v Secretary of State for Communities and Local Government, 30 Jul 2021  UKSC 36;  WLR(D) 431, SC(E)
IMMIGRATION — Detention — Inhuman and degrading treatment: R (CSM) v Secretary of State for the Home Department, 30 Jul 2021  EWHC 2175 (Admin);  WLR(D) 437, QBD
PLANNING — Development consent — World Heritage Site: R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport, 30 Jul 2021  EWHC 2161 (Admin);  WLR(D) 434, QBD
STATUTORY INSTRUMENT — Validity — Whether ultra vires: R (D4) v Secretary of State for the Home Department, 30 Jul 2021  EWHC 2179 (Admin);  WLR(D) 433, QBD
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.3 includes:
Law & Religion UK: Advertising condoms, free speech and offending religious sensibilities: Gachechiladze v. Georgia (Application no. 2591/19);  ECHR 665, ECtHR
Nearly Legal: Pick the first landlord up: Rakusen v Jepsen  EWCA Civ 1150, CA
UK Supreme Court Blog: Case Comment: R (Haworth) v Revenue and Customs Comrs  UKSC 25;  1 WLR 3521, SC(E)
RPC Perspectives: The current state of service: General Dynamics United Kingdom Ltd v State of Libya  UKSC 22;  3 WLR 231, SC(E)
Global Freedom of Expression (Columbia University): Matalas v. Greece: Expands expression: Matalas v Greece (Application no. 1864/18);  ECHR 247, ECtHR
Legal Futures: Another nail in the coffin of solicitors’ undertakings? Harcus Sinclair llp v Your Lawyers Ltd  UKSC 32, SC(E)
Inforrm's blog: Case Law: Hijazi v Yaxley-Lennon, Tommy Robinson ordered to pay £100,000 in damages to schoolboy he defamed on Facebook: Hijazi v Yaxley-Lennon  EWHC 2008 (QB), QBD (Nicklin J)
Transparency Project: Family arbitration : It’s arbitration, but not as we know it. A v A (Arbitration: Guidance) EWHC 1889 (Fam);  WLR(D) 388, Fam D (Mostyn J)
Law & Religion UK: Conscientious objection to military service in “unrecognised” States: Avanesyan: Avanesyan v Armenia (Application no. 12999/15);  ECHR 659, ECtHR
Free Movement: No-notice citizenship deprivation ruled unlawful: R (D4) v Secretary of State for the Home Department  EWHC 2179 (Admin);  WLR(D) 433, QBD
Other recent news and publications
ADR UK is funding four Research Fellows for seven to 12 months to conduct analysis using the Data First magistrates’ or Crown Court linked datasets, or a linking dataset enabling analysis of relationships between the two. Both datasets contain case and defendant level data on criminal court use between 2011 and 2020. They form the first cohort of Data First Fellows and the first funded users of the de-identified, research-ready datasets made available via the Data First programme. Data First is a ground-breaking data linkage programme led by the Ministry of Justice (MoJ) and funded by ADR UK to link and enable access to administrative data from across the justice system and beyond for research.
In Assange appeal shrouded in secrecy, Joshua Rozenberg highlights yet another example of unwillingness to share court documents unless reporters apply (paying court fee) to court for access. The post discusses the difficulty of finding out on what grounds the UK government hopes to appeal against a ruling preventing the extradition of Julian Assange to the United States.
In Why both the Science Museum and Shell were unwise to agree to a ‘gagging’ clause, David Allen Green discusses the recent revelation that the Science Museum in London had agreed to a ‘gagging’ or ‘non-disparagement clause’ in a sponsorship agreement with Shell, agreeing to take care not to say anything that could damage the company’s reputation. The result has been to damage both organisation’s reputations.
The Evidence-Based Justice Lab’s first working paper on the Post Office Project sets out concerns raised about the conduct of Group Litigation brought against Post Office Limited (POL) by Sub-Post Masters and Mistresses. It highlights concerns about the overall strategy and conduct of POL, Fujitsu employees, and the lawyers involved on their behalf. A copy of the paper is available here: WP1_Conduct-of-the-Bates-Litigation
We have covered these cases extensively in our Weekly Notes, 26 April 2021, as well as on other occasions. The Evidence-Based Justice Lab is an interdisciplinary research group, based at Exeter University Law School, specialising in behavioural and data science research.
A coalition of more than 220 organisations brought together by Humanists UK has condemned proposed changes to judicial review and the Human Rights Act 1998, according to Each Other UK, which is one of the participating organisations.
“The Act guarantees the rights to free speech and expression, to life, to liberty, to security, to privacy, to assembly, and to freedom of religion or belief. It prohibits torture and guarantees fair trials and the rule of law. Judicial review is an indispensable mechanism for individuals to assert those rights and freedoms against the power of the state.”
In the Parole Board Members Blog — July 2021, panel member Sian Flynn discusses some of the common misconceptions around parole and explains the reality of being a Parole Board member. The matter is topical in the light of recent cases such as that of Colin Pitchfork. Flynn explains:
Put simply, Parole Board members decide if a prisoner is safe to release. We take these decisions extremely seriously. After all, my colleagues and I have families of our own and all live in the community. Why would we release someone we considered dangerous?
The Nuffield Family Justice Observatory has published the results of its latest rapid consultation, on Remote hearings in the family court post-pandemic. It is based on the experiences of more than 3,200 professionals, parents and other family members from across England and Wales.
“The majority of professionals saw a continuing role for certain types of remote hearing, though raised concerns that hearings were often remote ‘by default’ and that considerations such as the vulnerability of lay parties and their wishes and views, the complexity of the case, and whether there was access to suitable technology for all those taking part should be taken into account. There was support for remote ‘administrative’ hearings but much less for remote fact-finding hearings, hearings involving contested applications for interim care or contact orders, or final hearings. Some commented that remote hearings would always be inferior to hearings in person.”
Dates and Deadlines
Family Law Conference: Current Issues
Online — 9 am -1pm, 15 September 2021
Bloomsbury Professional Live Online Family Law Conference takes place on 15 September, with Mr Justice Keehan QC as Chair and sessions including:
- Divorce and financial claims after Brexit
- Fit 4 NCDR 2021
- Spousal Maintenance: Where Are We Now?
- Pre-Acquired Assets
Tweet of the Week
is from Max Hardy on a matter that covers us all:
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.