Weekly Notes: legal news from ICLR, 20 January 2020

This week’s roundup of legal news and commentary includes cameras in court (again), employment winners and losers, and tales of injustice in foreign parts.

Courts

A Ministry of Justice announcement dated 16 January was titled “Cameras to broadcast from the Crown Court for the first time”. But the reality seems likely to disappoint. Trials will not be broadcast, only sentencing remarks. And these in turn will be carefully curated, and no doubt any broadcaster making use of them will further select for maximum impact or, perhaps, sensation. The development will require a further derogation from the prohibition on the making of images in court under section 41 of the Criminal Justice Act 1925. According to the announcement,

“The Crown Court (Recording and Broadcasting) Order 2020 will allow cameras to broadcast the sentencing remarks of High Court and Senior Circuit judges in some of the most high-profile courts across the country, including the Old Bailey.”

It seems only the judge will be visible, and “no other court user — including victims, witnesses, jurors and court staff — will be filmed”. The filming of sentencing remarks may boost transparency and public legal education, but most commentators have doubts about how effective it will really be. Some sentencing remarks are already published in written form, but unless they are detailed enough to give readers of the whole context of the case in which they are made, it seems a patchy way of informing the public how the system works. It certainly can’t compete with actually turning up and witnessing the case unfold in court, as one could do by sitting in the public gallery.

Some Court of Appeal (Criminal Division) hearings have been broadcast, with judicial approval, since 2014; and since November 2018 there has been live streaming of some hearings in the Court of Appeal (Civil Division), as we reported at the time (Weekly Notes, 19 November 2018). But they are mostly rather dull commercial litigation or planning appeals. Now the Master of the Rolls, Sir Terence Etherton, has indicated in a recent speech that “We are hoping to get a change to regulation which will allow us to live stream family cases in the Court of Appeal. At the moment, you cannot do that at all.”

He made the remarks at an event organised by the UK Association of Jewish Lawyers and Jurists and Techbar, but there is no reference to whether he had discussed the matter with the President of the Family Division, Sir Andrew McFarlane, who is currently in the midst of a consultation on transparency in the family courts. Though appeals from family courts are not usually subject to the same privacy restrictions as at first instance, they can still be subject to reporting restrictions imposed at the time.

The real problem with live streaming and broadcasting is the lack of context provided to the viewer: it needs either a commentary to explain the case and the procedure and perhaps also the law, or at the least access to materials such as the judgment below, if there is one, the notice of appeal and the written (“skeleton”) arguments, as well as evidence and authorities referred to. All that could be done via a half decent online court portal, but we are still a long way from having that. So these developments, interesting as they are, will remain for the immediate future little more than experimental pilots.

Further reading:

Law Society Gazette: Live-stream family cases in Court of Appeal, says master of the rolls

Secret Barrister: Televising sentencing remarks is a gimmick that has not been thought through

Transparency Project: Big news : more live streaming of court hearings — good news or not?

A family judge has reminded everyone that “Lawyers, court staff and judges are entitled to a proper one-hour lunch break”, according to the Gazette. In a “wellbeing protocol” issued by Her Honour Judge Sybil Thomas, a senior circuit judge, for Birmingham’s family court, she warns about the increased workload faced by the courts, which she says “has been magnified through the development and use of electronic communication”.

To enable professionals to manage their workload effectively, she recommends everyone being given a proper one-hour lunch break, ideally between 1 and 2pm. She also says court hearings should begin no earlier than 10 am and end by 4.30 pm, with an absolute cut-off at 5pm in exceptional circumstances, allowing court staff and professionals to return home in time to fulfil childcare and other caring commitments.

However, it is hard to see how such a protocol can be maintained in the face of the Flexible Operating Hours pilot currently being evaluated by Her Majesty’s Courts and Tribunals Service, which is designed to provide court services at times, early in the morning or late at night, convenient to court users, as opposed to the staff and professionals who provide them.

The MOJ and HMCTS have now provided a system enabling court users to apply for refunds of court fees for which they may have been overcharged during the period from April 2014 and March 2018.

“This follows a review in 2018, which discovered fees in certain proceedings had been unintentionally set above cost and fulfils the Government’s intention to refund anyone that was owed money. The refund scheme also covers specific fees that the Ministry of Justice has identified as having been mischarged — either where the wrong fee was charged or incorrectly applied.”

The courts affected include the Court of Protection, for which more detail on the scheme has been provided by the Court of Protection Handbook blog: Court of Protection fees refund

Employment law

Earlier this month the BBC presenter Samira Ahmed won her claim for compensation for sex discrimination after an employment tribunal found her work to be of equal value to that of a male comparator, Jeremy Vine, who was paid more than six times as much for anchoring a similar programme. The BBC attempted to justify the difference on the basis, inter alia, that when presenting something humorous Vine had a cheeky “glint in the eye”.

In Ahmed v BBC (Case No: 2206858/2018, 10 Jan 2020, ET) Employment Judge H Grewal, sitting with Mr S Godecharle and Mr P Secher, unanimously found that Ahmed’s work in presenting Newswatch was like Vine’s on Points of View under section 65(1) of the Equality Act 2010 and the BBC

“has not shown that the difference in pay was because of a material factor which did not involve subjecting the claimant to sex discrimination (section 69(1) of Equality Act 2010)”.

News reports have suggested that there may be a large number of similar claims awaiting resolution. But the BBC’s gender pay gap has been apparent for some time. In July 2017, under public pressure, the BBC published a list of “on-air talent” earning more than £150,000, which revealed a striking pay imbalance in favour of well established male presenters. Some of the big male “stars” (including Jeremy Vine, as it happens) accepted a pay cut. Despite this, in January 2018 Carrie Grace, the BBC’s China editor, resigned accusing the BBC of operating a “secretive and illegal pay culture” and a “divide and rule” approach to female staff. That led to the launch of an investigation by the Equality and Human Rights Commission (EHRC), which is due to conclude in March.

Further reading: NUJ (who supported the claim), Resounding NUJ victory in landmark equal pay case

Interesting report in the Financial Times: The upstart unions taking on the gig economy and outsourcing (Free gift link: let us know if it doesn’t work.)

The traditional unions, who favour workplace recognition and long-term negotiation with employers, are simply not meeting the needs of the so-called “precariat”, the low-paid transient or migrant workers who are insecurely employed in services industries. Because these workers are already at high risk of losing work, by virtue of their precarious position, they have less to lose or more appetite for risk in taking industrial action. And when they do, it takes a different form.

The article looks at how cleaners employed by an outsourced service firm at St Mary’s Hospital in London won a pay rise after organising a “noisy, confrontational and uncompromising” demonstration, with banners saying “We are not the dirt we clean”, beating drums, shouting through megaphones and crashing a board meeting to make their demands. They organised all this through a new trade union called United Voices of the World (UVW) which specialises in representing and organising mostly precariously employed migrant workers in low skilled jobs.

UVW in one of a number of disruptive “upstart” unions who refuse to conform to the traditional Labour party supporting multi-industry model that reached its apogee in the 1970s. Another is IWGB, the Independent Workers’ Union of Great Britain, which has challenged Uber’s classification of drivers as “partners” in court and won pay rises and recognition for couriers.

Naturally, the trad unions oppose their disruptive tactics, and accuse the upstart unions of risking their member’s futures with rash action; but that misses the point that the trad unions are designed to represent workers who (thanks to historic union activity) now enjoy higher job security, something the precariat can only dream of. Tiresome as it may be for employers, if they want to impose new models of working, they need to deal with new models of union organisation. (Maybe we should call this Grunwick Version 2?)

The outsourcing firms who employ cleaners on low wages and precarious terms often have contracts with universities as well as public institutions like hospitals. If you’re a law student, why not check out who cleans your hall of residence – see if there are any recorded complaints of low pay or ill treatment. There may even be case law. And perhaps think more generally about the kind of temp jobs you might be doing in your spare time or vacation, especially if they’re minimum wagers in the service industry. Who regulates them, and how well?

Law (and injustice) from around the world

Catching up with some recent legal stories from other jurisdictions.

Cyprus

In a case described by human rights lawyers as “very troubling”, a British teenager has been given a sentence of four months’ imprisonment, suspended for three years, for making a false allegation of rape against a group of male tourists at the the resort of Ayia Napa, after withdrawing her initial allegation under what appears to have been undue pressure from police.

The woman claimed to have been gang-raped by up to a dozen Israeli men in a hotel room while she was on a working holiday in the resort. But she was said by police to have retracted her statement in a written “confession” which appeared, under scrutiny, to bear signs of having been obtained under pressure and to contain phrases a native English speaker would not normally have used, suggesting it was not genuine. It was apparently given in the small hours of the morning after she had been held by police for over eight hours, without a lawyer. The judge did not hear evidence from any of the men she was said to have accused, and expert evidence from the defence was rejected by a judge (there are no juries in Cyprus).

The unnamed woman, who spent nearly five weeks incarcerated in Nicosia general prison and was forced to relinquish her passport, has now filed an appeal against her conviction. Although the case is partly about whether allegations of rape against teenage girls should be taken seriously and investigated properly, something about which the UK is not in the best position to lecture any other country, it is also about the conduct of police investigations generally, about how they interview suspects, and about the fairness of the trial process.

Further reading:

Matthew Scott, Daily Telegraph: The real scandal of the Ayia Napa rape case is the shocking behaviour of Cyprus’s courts and police

Guardian: British woman’s false rape claim appeal a ‘critical moment’ for Cyprus

Japan

The recent flight of former Nissan chairman Carlos Ghosn from Japan, where he was awaiting trial on financial misconduct charges, to his native Lebanon has drawn attention to Japan’s criminal justice system. Put simply, how does the Japanese system achieve its 99.9% conviction rate? And why is it often described as a system of “hostage justice”?

The latter point is attributable to the fact that the police in Japan are permitted by law to detain a suspect for up to 23 days, and to interrogate them without a lawyer being present. If you confess, which many do under pressure, you will be released on bail. If you protest your innocence, your detention continues. If the detention period expires they can re-arrest you on a slightly different charge, with approval from the court, and the whole process begins again.

The result, it is said, is that many do confess, and that confession in turn gives the prosecution a cast-iron case, without which they prefer not to trouble the court. So the reason they achieve a 99.9% conviction rate is not because judges are prosecution-minded, or defence counsel often too timid (or afraid for the consequences on their own career) to stand up for their clients; rather, it is because the prosecution would rather abandon cases they deem too weak to proceed with, effectively leaving the court to perform a rubber-stamping exercise on the certain winners.

Last week Ghosn gave a press conference, putting still more pressure on Japan, which is now in the position of having to defend both its system and its case against the famous fugitive. To make matters worse on both counts, the justice minister, Masako Mori, responded with a revealing gaffe by saying Ghosn should “prove” the innocence he asserts, strengthening the impression that Japan is failing to respect the presumption of innocence. It is perhaps not surprising that one of Ghosn’s complaints was the way his trial kept being postponed: perhaps prosecutors were putting off the evil day when their system would be under its most intense and protracted scrutiny with a case that might – given that Ghosn is said to have refused to confess – fall into that 0.1% that fail to secure a conviction.

Further reading:

Japan Times: A spotlight on Japan’s criminal justice system

Japan Times: Is international scrutiny of Japan’s criminal justice system fair?

BBC, Carlos Ghosn and Japan’s ‘hostage justice’ system

Nippon.com, Order in the Court: Explaining Japan’s 99.9% Conviction Rate

Human Rights Watch, Call to Eliminate Japan’s “Hostage Justice” System by Japanese Legal Professionals

Dates and Deadlines

Justice Week was first held in 2018, and is championed by the Law Society, the Bar Council and the Chartered Institute of Legal Executives (CILEx). Its aim is to improve access to justice by boosting the profile of justice and the rule of law, placing them at the centre stage of public and political debate. We’ll have more information nearer the time, but for now here’s the link to the Law Society page on it.

ICLR News

ICLR is looking for suitable candidates to join our busy professional reporting team. Please see our Careers page for more details, or check out the advertisements we will be placing in some parts of the legal press and online. The deadline for the current round of recruitment is 1 March 2020. The selection process involves writing a headnote. If you don’t know what that is, you’d better check out the relevant articles in our Knowledge section, starting here.

And finally…

comes from a Brexit Party MEP who seems genuine, though it could be a wind-up or spoof.

So long, and thanks for all the fish!

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.