Weekly Notes: legal news from ICLR, 2 November 2020

This week’s roundup of legal news and commentary includes a further lockdown, yet more confusing regulations, courtly compliance or its lack, Brexit, equality or its lack, and someone now in the Depps of disgrace. But first, a moment of calm…

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Coronavirus

After Tiers (for Fears), a Circuit Breaker, a Firebreak and other euphemistic rebrandings, the government has finally and belatedly buckled to the scientific pressure and decided to impose a second national lockdown to cope with the rising rates of Covid-19 infection, hospitalisation and death. The announcement came appropriately enough on Hallowe’en, and it will be debated and approved in Parliament before being implemented on Thursday. No doubt there will be a fresh set of regulations to grace the Statutory Instrument Book, or bulging filing cabinet; it is just days since the last of these SIs (admittedly a minor amendment) came into force: The Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) (Amendment) (No 3) Regulations 2020 (made on 31 October, to be laid before Parliament today, 2 November).

His Honour Clifford Bellamy, who has written elsewhere on the ICLR blog, comments on that last batch (relating to the 3-tier system) as follows:

“The Health Protection (Coronavirus, Local Covid-19 Alert Level) (Medium) (England) Regulations 2020 run to 31 pages

The Health Protection (Coronavirus, Local Covid-19 Alert Level) (High) (Regulations 2020 run to 34 pages

The Health Protection (Coronavirus, Local Covid-19 Alert Level) (Very High) (England) Regulations 2020 run to 29 pages

The government’s guidance runs to 10 pages for each tier (total — 30 pages)

Each guidance document contains links to in excess of 35 other documents in which further advice can be found.

Is it any wonder that the people who are bound by these regulations — including Government ministers — are confused about what the regulations allow, what the regulations forbid and what the exceptions are?”

Whether replacing all these with a single (Tier 4?) set of restrictions will make life easier for people, police and publicans (who seem especially targeted this time) remains to be seen. Although everyone (mostly) seems to wear masks in public indoor spaces, they often do so below the nose or “take it on the chin” (see Femi’s tweet) and social distancing of 2 m or even 1 m seems a distant memory, along with the idea of shops limiting the number of entrants. In short, everyone has gotten way too lax, and unsurprisingly the Rona has run amok.

See also: Reuters Institute, Communications in the coronavirus crisis: lessons for the second wave — “As the second wave hits the UK, 15% of citizens are at risk of being less informed, uninformed or misinformed about #COVID19"

In a joint message Lord Burnett of Maldon CJ and Sir Keith Lindblom, Senior President of Tribunals (can one say SPT?) declare that the work of the courts and tribunals “will continue to be exempted from these [lockdown] measures”. They add:

“It is vital for the well-being of the country that the administration of justice continues to operate. The legal profession, the parties, jurors, witnesses, judges, magistrates and court staff are all key workers, vital to the continued running of the courts and tribunals in this proposed period of renewed significant restrictions. Our experience since March has left us much better prepared. HMCTS will continue to follow and implement public health advice to reduce risk.”

HM Courts and Tribunal Service continue to send out weekly updates about the courts in operation. According to their latest update, from 2 November 2020, jury trials will have resumed in 78 Crown Courts and are running in 5 Nightingale Courts and 3 other existing court locations. You can see all the Covid-19 announcements from HMCTS on their operational summary page. (But remember, it is one thing for courts to be open or available: quite another for cases to be listed there and the facilities well utilised. That trial backlog is now almost 49,000 cases, and still growing.)

The Judiciary also has its Coronavirus (COVID-19) advice and guidance page with all the latest practice guidance.

Court reporter Tristan Kirk of The Evening Standard highlights a critical report by the Health and Safety Executive on lack of coronavirus compliance in a court: Westminster Magistrates’ Court staff warned after breaking social distancing rules

Brexit

The government has recently published a collection of legal guidance to help UK and EU lawyers prepare for post-transition on 1 January 2021 following Brexit. The main link is here: Brexit: guidance and regulation

But there are some more targeted links:

Equality

The Equality and Human Rights Commission’s final report into antisemitism in the Labour Party, published last week, found it had been responsible for unlawful acts of harassment and discrimination. The investigation identified serious failings in the Labour Party leadership in addressing antisemitism and an inadequate process for handling antisemitism complaints. The EHRC launched its investigation in May 2019 following complaints from Campaign Against Antisemitism and the Jewish Labour Movement.

The Party was found responsible for three breaches of the Equality Act 2010 relating to political interference in antisemitism complaints; failure to provide adequate training to those handling antisemitism complaints; and harassment. The report revealed a culture within the Party which, at best, did not do enough to prevent antisemitism and, at worst, could be seen to accept it. The EHRC has warned that, despite some recent improvements, the Labour Party must do more if it is going to regain the trust of the Jewish community, the public and many of its members.

The former leader of the party, Jeremy Corbyn MP, challenged the seriousness of the problems and breaches identified, saying they had been exaggerated for political reasons; with hours he had been suspended from the party. There may be a legal challenge.

Further reading:

Media law

In a judgment handed down on 2 November 2020, the Hollywood actor Johnny Depp lost an action for libel against News Group Newspapers, publishers of The Sun, over an article describing him as a wife-beater. The hearing in July was widely covered in the media, with daily commentary on Inforrm’s blog, all of it indexed by ICLR, alongside the judgment of Nicol J: see Depp v News Group Newspapers Ltd [2020] EWHC 2911 (QB). There is also a case comment by Kirsten Sjøvoll on Inforrm’s blog.

The defendant publisher raised a defence of truth (as set out in section 2 of the Defamation Act 2013), and the judge was satisfied to the civil standard of proof that Mr Depp had been violent on a number of occasions towards his former wife, Amber Heard, who was a witness in the case. Shortly after the judgment the claimant’s solicitors, Schillings, said ‘This decision is as perverse as it is bewildering” and that Mr Depp would be appealing. (In the meantime, his reputation is appalling.)

There was of course plenty of press coverage, including:

The Sun: STAR SHAMED Johnny Depp verdict: Actor beat ex-wife Amber Heard 12 TIMES, judge rules as The Sun wins libel case trial

Tatler: A verdict has been reached from the Trial of the Summer and it’s not good news for Johnny Depp

Metro: Johnny Depp’s lawyers plan on appealing ‘perverse’ verdict as he loses libel case against The Sun’s publishers

Recent publications and broadcasts

File on 4 — Locked Up in Lockdown

In this edition of the current affairs documentary on BBC Radio 4, Helen Grady speaks to people inside the justice system to find out how it’s coped with the pandemic — from delays in making courts covid-secure to a lack of PPE and overcrowding in prisons. You can also read the programme transcript.

Parole Board Chief Executive’s blog — October 2020

Martin Jones welcomes the new Government Root and Branch review of parole (which we covered last week: see Weekly Notes, 26 October 2020) and explores the possibility of holding certain parole hearings in court.

“I view greater openness and transparency as an opportunity we need to embrace and have seen no detriment from our provision of summaries and publication of reconsideration decisions. Provided there are appropriate safeguards so as not to disrupt the proceedings I would welcome a staged approach to opening up hearings where it is in the public interest to do so.”

He also points out that Parole Board reconsideration cases are now routinely published on BAILII. This is a legal mechanism introduced in 2019 enabling a prisoner, or the Secretary of State, to apply for a review of a Parole Board decision if they believe the decision was irrational or involved procedural unfairness.

Government by decree: Covid-19 and the Constitution

Giving the Cambridge Freshfields Annual Law Lecture on 27 October, the former Supreme Court Justice, Lord Sumption, lambasted (as the press would say) the emergency legislation and measures adopted by the government to tackle the coronavirus pandemic as “a monument of collective hysteria and governmental folly”.

“During the Covid-19 pandemic, the British state has exercised coercive powers over its citizens on a scale never previously attempted. It has taken effective legal control, enforced by the police, over the personal lives of the entire population: where they could go, whom they could meet, what they could do even within their own homes. For three months it placed everybody under a form of house arrest, qualified only by their right to do a limited number of things approved by ministers. All of this has been authorised by ministerial decree with minimal Parliamentary involvement. It has been the most significant interference with personal freedom in the history of our country.”

The Structural Problems in Private Law

Lucy Reed on her Pink Tape blog discusses, first, the psychological drivers boosting the adversarial nature of private law family proceedings and, second, the professional burden of having to do cross examination of or for other parties, falling on those acting for any child party where others are not represented, to ensure the court has all the relevant evidence.

Reframing Crime And Justice Arguments

Penelope Gibbs, of Transform Justice, writes on Russell Webster’s blog about efforts to “reframe the narrative on why people commit crime and what can be done about it”. She reports on a panel discussion event marking the launch of Transform Justice’s new guide to communicating about criminal justice, which was intended to be “both a celebration of sector unity and a clarion call to communicate better”.

Gibbs explains in the guide what she means about framing: “Framing is the choices we make when we communicate. What we leave out is sometimes as important as what we include, or what we emphasise. Each choice is framing.”

The problem with a lot of the communication about crime and justice is that it merely reinforces people’s assumptions or prejudices, or bombards them with jargon, or facts and statistics that fail to convince. The guide goes through a five step approach towards a more constructive and persuasive approach.

The government and the judges

Excellent article in Counsel magazine by Thomas Grant QC on the Independent Review of Administrative Law, the Judicial Power Project and current political noise-making about reform of the Supreme Court and the Human Rights Act. (The magazine also contains an interview with Lady Arden and a good article about robing room bullying by Rehna Azim, which first appeared on itsalawyerslife.com.)

The importance of Nigel Farage and other political hobgoblins

David Allen Green explains why political populists should always be taken seriously. They appear where there are cracks between the government and the governed, as a purveyor of easy answers. They are a sign that the people have lost confidence in the government, which in turn has lost the legitimacy of public support.

Law in Action — The International Criminal Court

Joshua Rozenberg returns for another series of this legal magazine programme on BBC Radio 4, with pieces about the UK Internal Markets Bill and the threat to the rule of law, a recent report revealing bullying, sexual harassment and judicial incompetence at the International Criminal Court, and the likelihood of courts becoming involved in settling legal disputes over the US Presidential Election. (I am grateful to one of those interviewed for the expression “a tweet with a filing fee” as a description of most party political electoral litigation claims.)

Dates and Deadlines

9 November 2020 — 18:15 online

From COVID to Brexit, the nations of the United Kingdom are facing challenges the likes of which have not been seen for a generation. At the invitation of Master Treasurer, The Rt Hon Sir Brian Leveson, Master John Major, our most senior former British Prime Minister, will examine The State We’re In.

As a matter of great public interest, the event is open to all. Members of the Inn can register and find further details here. Non-members can register by emailing members@middletemple.org.uk.

Wednesday 25th November 2020 — via Zoom

The London Legal Support Trust is hosting a Great Legal Quiz, a fantastic evening for people to have fun and compete whilst doing their part to help support those most in need of specialist free legal advice and help. You can take part in a local pub, your office, or online. Questions will be like a pub quiz — with no legal theme — so anyone can get involved!

Once registered, LLST will send you the questions and the answer sheets — all you have to do is: find a venue or set up a Zoom/Skype account, invite colleagues, family and friends and ask for donations. And, of course, play to win. All money raised goes to frontline legal advice charities who deliver help and support to vulnerable people in desperate need of specialist advice.

14 December 2020 — 5.30pm to 7.30pm by MS Teams

The panel will be looking at the report and recommendations of the expert panel on Assessing the Risk of Harm to Children and Parents in Private Law Children Cases. The event will be chaired by Mr Justice Williams and speakers will include members of the expert panel:

  • Mr Justice Cobb — High Court Judge
  • Neal Barcoe — Ministry of Justice and member of the Family Justice Council
  • Eleri Butler — former Chief Executive, Welsh Women’s Aid
  • Lorraine Cavanagh QC — Association of Lawyers for Children
  • Professor Rosemary Hunter — University of Kent and member of the Family Justice Council

To apply for a place and to raise a question for the panel’s deliberation, please apply using this form by Thursday 19 November 2020.

And finally…

is from Lucy Reed, otherwise known as Familoo, who has been cross-stitching, in the hope of not needing to get too cross at interruptions…

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.

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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