Weekly Notes: legal news from ICLR, 2 December 2019

This week’s roundup of legal news and commentary cannot altogether avoid the general election (to which last week’s manifesto roundup was dedicated) but concentrates on crime, terrorism, media, family and civil law matters.

London Bridge and The Shard viewed from Sky Garden, by Alena Veasey via Shutterstock.

Terrorism

London Bridge attack

On Friday 29 November a terrorism convict, Usman Khan, who had been released from prison on licence and was still wearing a tag, but had been given permission to attend an event devoted to prisoner rehabilitation at Fishmongers’ Hall in the City of London, ran amok and began assaulting people with knives. He was chased out onto London Bridge, where he was eventually shot dead by police. By that time he had succeeded in killing two people and wounding several others.

The two who lost their lives were Jack Merritt, 25, a Cambridge graduate and a course coordinator of Cambridge University’s Learning Together programme, which organised the event at Fishmongers’ Hall, and Saskia Jones, 23, another Cambridge graduate who was volunteering for the project. Jack’s father Dave Merrett has written movingly (in the Guardian) of his son’s death and of his likely anger at the way it was being exploited politically: “He would be seething at his death, and his life, being used to perpetuate an agenda of hate that he gave his everything fighting against.” Cambridge University has also put out A Message from the Director of the Institute of Criminology about the two deaths.

One of those who helped stop the killer was a murder convict who, like Khan, had been released on licence and was attending the event. Another was a Polish kitchen worker at Fishmongers’ Hall, who made use of a narwhal tusk exhibited in the hall as a defensive lance against the knife-wielding Khan. Another rescuer used a fire extinguisher. The police shot Khan because he appeared to be wearing a bomb-vest and was apparently going for a gun.

The event was widely witnessed during a busy time of day in the city, and a lot of footage appeared on social media. A lot of early commentary was made without knowing much about the facts, and is probably best overlooked. The fact that the killer was out on licence focused attention, mistakenly, on the role of the Parole Board. The killer had originally been given an indeterminate public protection sentence but this was reduced, on appeal, to a determinate sentence of 16 years, after serving half of which he was entitled to be released automatically on licence (as required by law). The Parole Board was therefore not involved, as it made clear in a statement issued the day after the attacks.

You can read the Court of Appeal’s decision here: R v Khan (Usman) [2013] EWCA Crim 468. Having pleaded guilty to a terrorism offence relating to a plot with others to detonate a bomb at the London Stock Exchange, Khan had originally been sentenced to detention for public protection with a minimum custodial term of 8 years. That was changed by the CA to one of a determinate period of 16 years with an extension of 5 years. Having served (allowing for time on remand pending trial) half that sentence of 16 years, Khan was eligible for release, automatically, under the regime then applying.

There have been a number of changes to the sentencing regime since his original conviction, which (deliberately or otherwise) some prominent politicians have been busy blaming each other’s parties for, but the whole position is very clearly explained by the Secret Barrister on a blog post: 10 things you should know about the London Bridge attacker and “early release”. So clearly, in fact, that the Prime Minister seems to have copied them into a thread of his own on Twitter, which revealed such a transformation in his grasp of the criminal justice system as to raise the question why his legal genius had lain for so long dormant.

Even Newsweek had coverage of the story: UK Prime Minister Boris Johnson accused of plagiarizing prominent legal blog in tweets about London Bridge attacker (something the Secret Barrister, who has never been seen in the same room as Boris Johnson, described as “weapons grade shithousery”.)

Following the attack, the bridge and surrounding area went into lockdown and the streets were cleared; the police continued to search for evidence, including at Khan’s house in Stoke-on-Trent. But one thing remains (as far as we know) unexplained: how did a convicted terrorist gain entry or re-entry to an event such as the one in Fishmongers’ Hall, apparently wearing a bomb vest and armed with two large and lethal looking knives?

Further comment

We expect to see and hear more comment on this tragedy in days to come, but this piece by Hardeep Matharu in Byline Times, The Humanity of the London Bridge Victims is the Real Fight Against Terror, reflects much that is wrong with the current relationship between politics and the justice system.

Criminal justice is an area that demands a lot from the people who are brave enough to engage with it. It requires grappling with nuance, with moral and practical considerations, and gains little traction with the public. Politicians make the calculation that examining the issue constructively wins no votes. Cuts to the parts of our public services tasked with delivering our system of criminal justice go largely ignored.

It is this which makes the work of Jack Merritt and Saskia Jones all the more honourable and courageous. People like them are trying to catch individuals falling through the cracks in our society, in the crevices where the state and politicians feel they don’t need to care.

See also James Butler in the London Review of Books, On London Bridge, in similar vein:

“The spiral into law-and-order posturing is the only option left for a Conservative government that has presided over a prison system rife with violence and abuse. The chief inspector of prisons said last year that the appalling conditions had ‘no place in an advanced nation’. Recruitment to terrorism in jail can fester unchecked. The prisons budget has been cut by nearly 40 per cent under successive Tory administrations. Its ‘deradicalisation’ programmes are risible, unserious efforts by a government unwilling to face the problem and baulking at the hard, one-to-one work needed for real success: the desultory efforts now in place are often inaccessible, even to the few — including Khan, according to his former lawyer — who ask for them.”

Media law

Fake news, realpolitik

The Conservative Party has been criticised for a number of what might be called fake news incidents, including —

(a) changing the prominently visible name and branding of the CCHQ (Conservative Campaign Headquarters) during the ITV leaders’ debate on 19 November to “Fact Check UK”, thereby seemingly passing themselves off as an objective independent checking service like Full Fact; In a statement, Twitter said the Conservatives had misled the public and it would take “decisive corrective action” if a similar stunt was attempted again.

(b) creating a fake Labour Manifesto website, to which people searching for the word “labour” were redirected via a promoted ad on Google, using Labour red branding and saying: “Labour’s 2019 manifesto … No plan for Brexit. Higher taxes. Two more referendums.”

And ( c) creating Facebook adverts misleadingly quoting footage of BBC journalists Laura Kuenssberg and Huw Edwards discussing Brexit. However, as Paul Bernal comments in Ceasefire, the The BBC cannot fight ‘fake news’ if it’s part of the problem:

“The failure of much of the British media, and the BBC in particular, to understand, or at least acknowledge, their role in the spreading of fake news, is potentially disastrous for our political future”.

Their candidate Boris Johnson has also been criticised for failing to submit himself to interviews and debates in which other party leaders have willingly participated. In the case of Channel 4’s Climate Change debate, both he and the Brexit party leader, Nigel Farage, were replaced in the debate with ice sculptures, which slowly melted in a symbolic reference to the warming planet.

The Liberal Democrats have been criticised for creating fake local newspapers filled with their own slanted news of likely electoral success. This is not so much fake news as fake newspapers, but it’s still a problem, as noted in the Press Gazette: Political parties must stop imitating newspapers in election campaign materials

Meanwhile questions have been asked over Labour’s use of classified documents detailing UK-US trade talks to claim the prime minister was putting the NHS “up for sale”. According to the Financial Times, the documents “were first leaked online in a way that mirrored a recent Russian disinformation campaign, according to US researchers”.

“Graphika, a company that has analysed the document leak alongside the Washington-based Atlantic Council think-tank, published a report on Monday, seen by the Financial Times, suggesting the incident could point to potential foreign interference in the upcoming UK election.”

The Labour party have apparently also been “slammed” (The Sun says) for creating a fake image of the red Brexit campaign bus, turning it blue with the words “Let’s send Trump £500 million a week. Let’s fund US drug firms, not our NHS.” The problem seems to be the unauthorised use of the NHS logo.

Given that, at one time or another, all the major parties have complained about and vowed to tackle the problem of fake news, it does seem rather hypocritical of them to be using or abusing it in furtherance of their electoral aims.

Family law

Coram permanence event

Giving the keynote speech at this year’s event, Sir James Munby, chair of the Family Justice Observatory, said “We need much more research into and analysis of what is going on in the care system”. He took as his cue the definition of permanence in the statutory Guidance for the Children Act 1989 :

“The long term plan for the child’s upbringing … to ensure that children have a secure, stable and loving family to support them though childhood and beyond and to give them a sense of security, continuity, commitment, identity and belonging.”

Based on that, he discussed the idea of permanence in the context of five themes, including (1) The role of the State — better care; (2) Children in care have greater needs; (3) Failings by the State in the provision of support and services; (4) Siblings, and (5) Outcomes. He concluded on a slightly (more than slightly) despairing note:

“If society is not willing to provide us with adequate resources, should we not be significantly reducing the number of children we bring into a failing system, so that those reduced numbers might actually benefit from a system which would then be able to cope; should we not be considering, for example, how to re-set ‘threshold’, not as a matter of statute but as a matter of understanding and practice?”

Medical Experts consultation

The draft report of the President of the Family Division Working Group on Medical Experts in the Family Courts has been published. The working group have produced a report using information gathered from surveys of the legal and medical fields and a symposium held in London in July. The report confirms the nature and extent of the shortages of medical and other health professional is experts, identifies a wide range of causes and proposes solutions. The next stage is to consult upon those proposed solutions to assess their viability and how best they might be implemented. The consultation closes on the 31st January 2020.

Jordans/Lexis Awards Dinner

The annual Family Law Awards dinner was held on Wednesday 27 November at the Ballroom (a sort of semi-permanent marquee structure located behind the National Theatre) in London. Among those shortlisted for a prize as Commentator of the Year was the Transparency Project, one of whose trustees and members is Paul Magrath of ICLR (see if you can guess which one in the picture tweeted below).*

Sadly, they didn’t win. But it was a fun evening anyway (despite the pricey tickets). You can see all the shortlistees, and all the winners, and some more photos on the Family Law Awards 2019 website.

New books

The Windrush Betrayal: Exposing the Hostile Environment, by Amelia Gentleman (Guardian Faber £18.99) and Homecoming: Voices of the Windrush Generation, by Colin Grant (Cape, £18.99) — two books, reviewed in this month’s issue of the Literary Review and in The Guardian, about the generation of immigrants from the Caribbean who settled in Britain in the 1950s and 60s, and whose lack of official recognition by the authorities and persecution under the “hostile environment” operated by the Home Office, gave rise to the recent Windrush scandal. Gentleman was the journalist who, more than anyone, investigated and revealed the scandal.

Disturbance, by Philippe Lançon (Europa £14.99) is a compelling and moving memoir by the surviving member of the editorial team at the French satirical magazine Charlie Hebdo who were massacred by an Islamist terrorist in January 2015. Lançon was left for dead, but in reality had been severely injured, including most of the lower part of his face being destroyed. He spent a long time in hospital under armed guard, and is philosophical rather than polemical in his discussion of these and subsequent events, according to a review in The Guardian. It, too, is reviewed in this month’s Literary Review.

Dates and Deadlines

Middle Temple Revels

Friday 13th of December 2019 18:30

The first record of the Middle Temple Revels is over 400 years old. Written and performed by Middle Temple students, pupils, and barristers, the night consists of comedy revue of sketches and songs, and music from a live band, that harks back to the times of Shakespeare and before. Doors open 18:30; show begins 20:00. Dress Code: Business Attire/ No Gowns.

To book please call Middle Temple Treasury on 0207 427 4800.

Tweet of the Week

Is from the deputy editor of the Guardian:

That’s it for this week. Apologies for late posting. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived.

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.

*He does not always look so smug. It’s probably something to do with putting on a dinner jacket and bow tie.

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.