Weekly Notes: legal news from ICLR, 20 February 2023
This week’s roundup of legal news includes popup courts, morality and sentencing, professional regulation. Plus recent case law and commentary.
Nightingale courts to continue
If the stool pigeon sings like a canary in a nightingale court, will the defendant get bird for robin the bank?
A more serious question might be, if HMCTS hadn’t sold off so many courts to pay for its massive budget-busting Reform programme, would we need to keep so many popup courts open to help work through the backlog of criminal trials mainly caused by a pre-covid lack of sitting days?
Whatever the reason, and grousing aside, the MoJ’s announcement that “Nightingale Courts across England and Wales are being kept open for another year to reduce waiting times and deliver swift justice for victims” seems nothing much to crow about. Lord Chancellor and Secretary of State for Justice, Dominic Raab MP said:
“We are determined to provide the swift justice that victims deserve, and Nightingale courts have a vital role to play as our justice system continues to recover from the unprecedented impact of the pandemic and last year’s strike action.”
Blaming the backlog on covid and the barristers’ strike somewhat misses the point that most of it was caused by a penny-pinching failure to allot sufficient judicial and court resources before either of those additional factors came into play.
The National Audit Office found in its report Reducing the backlog in criminal courts (October 2021) that “The number of cases in the backlog increased from 33,290 on 31 March 2019 to 41,045 on 31 March 2020” and that “Between 31 March 2020 and 30 June 2021, the Crown Court backlog increased from 41,045 to 60,692 cases”. The impact of the barristers’ strike in the latter part of 2022 was relatively marginal, temporarily pushing up the total to around 62,000, and could have been even less if it had been resolved more quickly: BBC, Chronic backlog of serious-crime cases hits courts (see graph based on HMCTS data).
The MoJ says “The number of cases in the backlog fell by almost 800 cases in the last 2 months of 2022, after [defence] barristers ended strike action.” As we reported last week, prosecution fees have also been increased for barristers, but the question of fees remains unresolved for solicitors, and there continues to be a shortage of barristers and judges, so the backlog is likely to continue for some while yet.
The government says it is investing £477m over the next three years to tackle the Crown Court backlog. A total of 24 temporary or “Nightingale” courtrooms, which were originally set up to boost capacity for socially distanced jury trials during the pandemic, will remain open in 2023 to allow more cases to be heard.
Other measures to help clear the backlog include allowing courts to run at full capacity, doubling the sentencing powers of Magistrates, and recruiting even more judges.
See also: Public Accounts Committee report, Reducing the backlog in criminal courts (HC 643).
Law, morals, and sentencing
“Trust in the rule of law is an essential ingredient of society and it will erode swiftly if judges make politically or morally-motivated decisions that do not accord with established legal principles.”
So declared District Judge Graham Wilkinson last week when sentencing seven Just Stop Oil protesters for criminal trespass. He gave them each a 12-month conditional discharge and ordered them to pay costs to the Crown Prosecution Service (CPS), after expressing admiration for their “admirable aims” when disrupting operations at an Esso fuel terminal in Birmingham last year.
The judge’s remarks were published in full via the BBC after Just Stop Oil issued what the Judicial Office said was a “misleading account” of what the judge had said.
This presumably refers to the press release issued by Just Stop Oil in which they quoted the judge as saying “You Should Feel Guilty for Nothing” and gave a version of his sentencing remarks which is different from that released by the Judicial Office. However, the differences were relatively minor, and read as a whole the Just Stop Oil version does not suggest the judge was praising the protesters for their actions or expressing a wish to let them off altogether.
According to the official version, he said:
“This is not a court of morals, it is a court of law, if I allow my own moral compass or political beliefs to influence my decisions and ignore the law where it is convenient to me to do so then the court becomes one where the rule of law no longer applies.
“If judges across the criminal justice system did the same then there would be no consistency and no respect for the law, decisions based on the personal beliefs of members of the judiciary cannot be consistent with the rule of law and the ideal that each law will apply to all equally.”
Accusations of excessive leniency cannot be levied against the judge in the far more serious case of former policeman David Carrick, following his convictions for dozens of rapes and sexual offences against 12 women. Nevertheless, nearly 60% of respondents to a YouGov poll believed that the “minimum sentence of 30 years and 239 days” passed by Cheema-Grubb J was indeed too lenient. Her sentencing remarks can be found here.
The Attorney General’s office has received “a stream of complaints” about the sentence, and has announced that it is “reviewing” it. The Times newspaper has suggested in a leader that Carrick should have been given a “whole life” tariff, ie with no chance of ever getting parole.
But Matthew Scott, in a post on his Barrister Blog, says The Attorney General should not refer Carrick’s sentence to the Court of Appeal. Scott explains why, under the sentencing guidelines and by comparison with other egregious cases, the judge’s explanation for her sentence is “unassailable’, and that if referred to the Court of Appeal, it would almost certainly be upheld.
David Allen Green in a post on the Law and Policy Blog explains why, although he initially thought otherwise, he now agrees with Scott’s view: see Whole Life Orders when there is not loss of life.
Regulation of the Bar
The Bar Standards Board had now published its response to the Legal Services Board’s policy statement on ongoing competence. The idea that lawyers should “remain competent throughout their careers” seems unexceptionable. Though the BSB’s announcement is tagged “Quality Assurance” there is no mention of the controversial Quality Assurance Scheme for Advocates (QASA) which some years ago threatened to require judges to mark barristers’ homework at the same time as deciding the cases in which those barristers were appearing. Instead, the BSB has published an “action plan” which promises a “monitoring framework tool” to help collect and address data relating to barristerial competence, and a revamped CPD programme. It also says:
“The BSB does not currently operate a reaccreditation scheme for barristers once authorised. There is insufficient evidence to suggest that re-accreditation is necessary for barristers and we believe that the range of regulatory measures in place at present adequately assure standards of practice. We are open to revisiting that position if new evidence were to emerge that suggested that reaccreditation might be necessary (and would address the risks to standards of practice identified).”
Evidently there isn’t much appetite for a revival of QASA, and the prospect of imposing it on a mutinous profession which has showed that it is not afraid to down tools might not seem particularly attractive.
See also: Legal Futures, BSB leaves door open to reaccreditation of barristers
Other recent items
Whatever happened to the ‘review of the presumption of parental involvement’?
Transparency Project reports on the lack of progress in producing an “urgent review” of the legal presumption that continuing involvement with both parents is in a child’s welfare, announced in response to the Harm Report published back in June 2020.
The collapse of FTX: lessons for many
From investors to regulators, FTX Trading Ltd (FTX) filing for bankruptcy was unexpected by all, say James Wickes, Matthew Wood and Jessica Pease of Reynolds Porter Chamberlain LLP on the RPC Perspectives blog. “A catalyst for litigation and regulation over the years to come, this collapse will serve as a warning, particularly to cryptocurrency insurers.”
[We discussed the regulation of cryptoasset marketing in last week’s roundup: Weekly Notes, 13 February 2023.]
ChatGPT: Time to fear the threat from artificial intelligence?
A guest post on Legal Futures by Miklos Orban, chief technology officer at gunnercooke, who seems to think the hype this time is justified: “this may be the first time where people feel that machines may not only replace photocopiers, bank tellers and blue-collar workers, but threaten the professions, such as computer coders, financial analysts, journalists, and us — lawyers.”
UK government outlines reforms to thirty-year-old cybercrime law
Julia Varley and Stuart Davey of Pinsent Masons discuss proposed changes to the Computer Misuse Act 1990 set out in the government’s response to a consultation paper, following a call for information by the UK Home Office in 2021. The Act, say the authors, is “clearly overdue for a review and update. It’s positive that the government recognises that it is an area in need of reform given the risk cybercrime presents to businesses and individuals”.
Royal wills: unsealing the mystery
Paul M (who he?) on the Transparency Project blog discusses the latest development in the case concerning the will of the late Prince Philip, which was sealed up for 90 years in a very private hearing.
Parents with intellectual impairment in public law proceedings: The Need to be Alert
Interesting new speech by the President of the Family Division, Sir Andrew McFarlane given as the keynote address at the Aspire Conference in Exeter on 7 February 2023.
A roadmap for driverless cars
Joshua Rozenberg, on A Lawyer Writes, discusses the Law Commission’s proposal for remotely-operated vehicles to be licensed, in the short term, under secondary legislation. But “robust regulation is required to ensure that trials can take place safely.”
Why there should be a “no fault” compensation scheme for serious personal injuries
Unrelated to the item above, this is David Allen Green’s essay, on his Law and Lore Blog, about the inferiority of personal injury litigation, by or on behalf of the victims against an identifiable tortfeasor, using available evidence, for a provable tort, in order to secure adequate compensation to meet their needs, sometimes depending on “obscure legal provisions which neither party actually had any idea about at the time”.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
EMPLOYMENT — Contract of employment — Implied term: Benyatov v Credit Suisse (Securities) Europe Ltd, 17 Feb 2023  EWCA Civ 140;  WLR(D) 85, CA
ENVIRONMENT — Genetically modified organisms — “Mutagenesis”: Confédération paysanne v Premier ministre, 07 Feb 2023 (Case C-688/21); EU:C:2023:75;  WLR(D) 81, ECJ
IMMIGRATION — Leave to enter — Application: R (CX1) and others v Secretary of State for Defence, 13 Feb 2023  EWHC 284 (Admin);  WLR(D) 83, KBD
MARRIAGE — Financial provision — Non-disclosure: Goddard-Watts v Goddard-Watts, 15 Feb 2023  EWCA Civ 115;  WLR(D) 80, CA
REVENUE — Capital Gains Tax — Transfer of assets between companies in same group: Gallaher Ltd v Revenue and Customs Comrs, 16 Feb 2023 (Case C-707/20); EU:C:2023:101;  WLR(D) 84, ECJ
REVENUE — Income tax — Pension: Devon and Somerset Fire and Rescue Authority v Howell, 13 Feb 2023  EWHC 257 (Ch);  WLR(D) 82, Ch D
REVENUE — Value added tax — Supply of goods or services: Greenspace (UK) Ltd v Revenue and Customs Comrs, 10 Feb 2023  EWCA Civ 106;  WLR(D) 76, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Free Movement: High Court orders Home Office to provide Schedule 10 accommodation to destitute migrants: R (Ganpot) v Secretary of State for the Home Department  EWHC 197 (Admin), KBD
Free Movement: No damages for unlawful no recourse to public funds policy: The Home Office v ASY  EWHC 196 (KB), KBD
Free Movement: First legal challenge to criminalising asylum seekers reaches Court of Appeal: R v Mohamed, Preliminary ruling, Crown Ct
The Guardian: Boy, 15, sentenced to life for ‘senseless’ fatal stabbing of shopper: R v M & ors, Sentencing remarks, Crown Ct
RPC Perspectives: HMRC ordered to pay taxpayer’s costs due to unreasonable behaviour: Eclipse Consulting Ltd v Revenue & Customs Comrs, Judgment PDF, FTT
RPC Perspectives: A gamble on Part 36: Von Westenholz v Gregson  EWHC 3374 (Ch), Ch D
RPC Perspectives: The right to know who has your personal data: Österreichische Post (Informations relatives aux destinataires de données personnelles) (Case C-154/21); EU:C:2023:3, ECJ
RPC Perspectives: Victory against HMRC — but at what cost? Wincanton Holdings Ltd v Revenue And Customs  UKFTT 446 (TC), FTT (TC)
Hailsham Chambers: Two cases about QOCS where the claimant accepted a Part 36 offer late: Chappell v Mrozek  EWHC 3147 (KB), KBD
Local Government Lawyer: Judge quashes decision letter over discriminatory impact of housing allocations policy on domestic abuse survivor: R (TX) v Adur District Council  EWHC 3340 (Admin), KBD
Guildhall Chambers: The Return of Detrimental Reliance — Case Note: Hudson v Hathaway  EWCA Civ 1648;  WLR(D) 513, CA
Local Government Lawyer: Why an exceptional view might constitute a nuisance against your neighbours: Fearn v Board of Trustees of the Tate Gallery  UKSC 4;  2 WLR 339;  WLR(D) 53; The Times, 6 February 2023, SC(E)
Tweet of the week
Could this cat rule in court?
That’s it for now. Thanks for reading, and thanks for all your toots, tweets, posts and links. Work hard, be kind, take care.
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.