Weekly Notes: legal news from ICLR, 20 March 2023
This week’s roundup of legal news includes war crimes, deprivation of liberty, and the Post Office IT scandal; plus recent case law and commentary.
A warrant for the arrest of Russian President Vladimir Putin and his children’s minister, Maria Alekseyevna Lvova-Belova, has been issued by the judges of the International Criminal Court in The Hague. Both are alleged to be responsible for the war crimes of unlawful deportation of population (children) and of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute).
According to the court’s announcement, the warrants were originally issued last month in secret, in order to protect the investigation, but last week the court decided to make their issue public, because the “conduct addressed in the present situation is allegedly ongoing”, and “public awareness of the warrants may contribute to the prevention of the further commission of crimes”.
Other war crimes allegations are likely to follow, as the process of gathering evidence continues. But they say every journey begins with a single step and this is one that may eventually lead to a measure of justice for some of the harm that Putin has done with his so-called “special military operation” in Ukraine.
In a statement the ICC Chief Prosecutor, Karim A. A. Khan KC said
“We must ensure that those responsible for alleged crimes are held accountable and that children are returned to their families and communities. As I stated at the time, we cannot allow children to be treated as if they are the spoils of war.
Since taking up my position as Prosecutor, I have emphasised that the law must provide shelter to the most vulnerable on the front lines, and that we also must put the experiences of children in conflict at the centre of our work. To do this, we have sought to bring our work closer to communities, draw on advanced technological tools and, crucially, build innovative partnerships in support of our investigative work.”
Justice ministers from more than 40 countries will be meeting at Lancaster House in London today, at a meeting jointly hosted by the Justice Secretary, Dominic Raab MP, and Dilan Yeşilgöz-Zegerius, Minister of Justice and Security in the Netherlands, where the ICC is based, to support the court’s war crimes investigations more generally. Britain has already pledged £1m to help support the ICC this year and the MoJ said other countries were expected to pledge financial support during the conference in London.
The meeting will allow countries to determine how to provide further help to the Court. This includes practical support such as helping to gather information and share evidence of atrocities committed on the ground. Ministers will also discuss how to help victims and witnesses provide testimonies without causing them further distress.
The Ministry of Justice announced the meeting back in January but has yet to provide further details, though some journalists appear to have been briefed, including Joshua Rozenberg, who provides more details here: ICC supporters meet in London. See also:
- Reuters, Justice ministers meet in London to build support for ICC after Putin warrant
- David Allen Green, the Law and Policy Blog, An Arrest Warrant for Vladimir Putin
Meanwhile, China’s President Xi Jinping is in Moscow for a two-day visit and talks with Putin, to promote bilateral ties between their neighbouring nations, and to discuss the Ukraine situation. Xi is due to visit Ukraine afterwards, but whether any basis for peace talks will emerge remains to be seen. See BBC, China’s Xi Jinping in Russia for talks with Putin
The flight from justice…
…and justice for the flight. The United Nations Aviation Council last week voted to hear a case against Russia over the 2014 downing of Malaysia Airlines Flight MH17. According to Reuters, Australia and the Netherlands initiated the action over MH17 last year at the International Civil Aviation Organization (ICAO). The passenger jet was struck over rebel-held eastern Ukraine by what international investigators and prosecutors say was a Russian-made surface-to-air missile, killing all 298 people on board.
The action can be pursued under an article of ICAO’s Convention on International Civil Aviation (the Chicago Convention) designed to protect civilian aircraft from weapons fire. It was added in 1984 following the shooting down of a South Korean airliner by Soviet fighters the previous year.
The UN move is in addition to a Dutch murder trial for four suspects over their individual alleged criminal responsibility.
Deprivation of liberty
A new briefing from the Nuffield Family Justice Observatory highlights high-level data trends during the first eight months of the National Deprivation of Liberty (DoL) Court, which was set up by the President of the Family Division, Sir Andrew McFarlane last July as a 12-month pilot scheme. Based at the Royal Courts of Justice, the pilot court deals with all new applications seeking authorisation to deprive children of their liberty under the inherent jurisdiction.
Since July 2022, the Nuffield FJO has published monthly briefings highlighting high level data trends: July and August, September, October, November, December and January.
The latest briefing highlights data trends across the whole 8-month period so far. Alongside this briefing they have also published the first detailed report on the needs and characteristics of children subject to deprivation of liberty applications, Children deprived of their liberty: An analysis of the first two months of applications to the national deprivation of liberty court
They comment that:
“Our analysis confirms the complexity and severity of risk faced by children subject to DoL applications and highlights an urgent need for increased resource, creativity and collaboration across all systems responsible for the care of these children if we, as a society, are going to better meet their needs.
“Children who are subject to DoL applications are extremely vulnerable. They typically have multiple and complex needs that are evident in behaviours that can make them a risk to themselves or others.
“ Applications are too often made to place children in unregistered provision as a stopgap in the hope that more suitable provision will become available. But a dire national shortage of suitable homes means that in many cases, children will remain in temporary or crisis placements for much longer.”
A typical case?
In a recent blog post on The Transparency Project, family law barrister Jack Harrison writes about the case of Manchester City Council v. P (Refusal of restrictions on mobile phone)  EWHC 133. He explains that a nationwide lack of secure placements for vulnerable teenagers has led to the use of deprivation of liberty authorisations, which he describes as:
“a mechanism whereby makeshift and often unregistered arrangements are scrutinised by the High Court and given the veneer of lawfulness: by the court declaring that holding a child in those circumstances is ‘necessary’, and therefore does not amount to a breach of the child’s human right to liberty and security of person.”
He says the National DoL Court was set up to keep track of the number of cases that require this makeshift solution, and “has become a modern-day Pandora’s Box”.
“That is not to criticise the court — that is responding to a crisis — or the local authorities coming up with the solutions. What is one to do if there is no proper placement?”
In the case of P, the local authority decided that she needed to be kept in a placement with special limitations on her liberty, including being deprived of access to her mobile phone and social media, and so applied to the court for DOLs authorisation. This was to prevent communication with others who might encourage P to behave badly, or run away, or strangers who might prey on her in a difficult moment. But Mr Justice Macdonald thought that Manchester City Council — who shared parental responsibility to P through a care order — could remove and restrict P’s telephone simply by exercising its parental responsibility, as any parent may be allowed to do. There might be cases where the means of removing the mobile phone or restrictions did require deprivation of physical liberty, but P’s case was not one of them.
DoL in the Court of Protection
A recent post on the Open Justice Court of Protection blog illustrates the use of the DoL jurisdiction in relation to incapacitous adults, where decisions are made affecting their welfare in the Court of Protection. The daughter of a P (protected person) in the Court of Protection writes about her experience of the court process and offers some observations and recommendations for families and legal professionals.
“‘She’s been deprived of her liberty since 27 February 2020.’ When I read this sentence in an Open Justice Court of Protection Project blog recently (‘When wishes and feelings change’) it felt as though a shard of glass was piercing my soul.
‘Deprived of her liberty’ is a common legal term that I have heard many times over the past few months and to some extent I have become used to it. But occasionally, like this time, it hits me emotionally. Because it is a term used to refer to my mother’s situation.
And whereas the law regards her as being deprived of her liberty, we, her family, believe that she is a vulnerable adult who is somewhere safe, protected and well cared for.
Due to my mother’s ‘deprivation of liberty’, I have experienced what it means to be part of a Court of Protection process. Through this, I have learned a lot about the Court of Protection and it’s safe to say that my opinion about it has vastly changed from the beginning to where I am now, at the end of the process.”
Read the blog: ‘Deprived of her liberty’: My experience of the court procedure for my mum.
Post Office Horizon IT scandal
Altman Review reviewed
Over a series of posts on his Thoughts on the Post Office Scandal substack, Prof Richard Moorhead has been analysing and deconstructing the General Review conducted by Brian Altman KC in 2013 into the reliability of earlier prosecutions of subpostmasters by the Post Office following revelations of the unreliability of the Horizon accounting system in the report of forensic accountants Second Sight. Altman later acted for the Post Office in the Hamilton criminal appeal. As Nick Wallis in his latest newsletter explains:
“The Altman Review was written by one of the most pre-eminent criminal silks in the business — Brian Altman KC — and yet it is riddled with inconsistencies and basic failures of logic, which Moorhead calmly explains.
This is significant because it was the Altman Review which gave the Post Office the comfort it needed to continue covering up the miscarriages of justice it was directly responsible for.”
Other recent items
How will refugees react to the Illegal Migration Bill?
While some pro-government newspapers were full of stories about the Home Secretary Suella Braverman’s recent trip to Rwanda to view refugee custody facilities and make jocular comments about the quality of their interior design, more serious people have been considering the wording and effect of her much-hyped Illegal Migration Bill (discussed in last week’s roundup). In a post on Free Movement, immigration specialist Colin Yeo considers the effect the Bill might have on the behaviour of those would-be migrants intended to be caught in its provisions (and whisked off to Rwanda for processing).
Rights on Paper? The Discriminatory Effects of Digital Immigration Status on Private Landlord Decisions
Under the EU settlement scheme, millions of EU, EEA and Swiss nationals have been granted “digital-only” immigration status. Instead of having physical documentation to prove their immigration status, these individuals must rely on an online proof-of-status service through the GOV.UK website. Jed Meers, Joe Tomlinson, Alice Welsh and Charlotte O’Brien on the UK Constitutional Law Association blog examine whether individuals with this form of “digital only” status are disadvantaged in the private rented sector by exploring the decision-making behaviour of English landlords when choosing between prospective tenants.
Translation rules impede access to justice
In the Law Society Gazette Cathy Wrigglesworth, solicitor at Parkers Solicitors, Stockport, flags up an important barrier to justice for non-English speakers and those relying on non-English speaking witnesses, because of a change in the CPR requiring witness statements to be drafted in the speaker’s own language (see PD32). The drafting of a statement in a client’s own words and own language is, in a large proportion of cases, to be undertaken by solicitors in cases which are subject to fixed costs, which are not recoverable from a paying party. This means that mean that retaining clients whose own language is not English may no longer be a sustainable or economic way for law firms to operate.
Taking the neurological lead
In the latest Counsel magazine, Professor Jo Delahunty KC and Charlotte Plowman discuss the prejudices and preconceptions around neurodivergence and how it can affect professional life at the Bar. Delahunty has previously spoken openly about the need to destigmatise neurodivergence and her emerging awareness of how undiagnosed ADHD, dyscalculia, and dyslexia may have affected her.
Data protection law reforms set out in the UK
Draft legislation published by the UK government would significantly alter existing data protection law in the country if enacted but also closely resembles abandoned proposals that were introduced before the UK parliament last summer, according to partners Jonathan Kirsop and Kathryn Wynn at Pinsent Masons.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CHILDREN — Parentage — Declaration as to status: In re C, 09 Mar 2023  EWHC 516 (Fam);  WLR(D) 132, Fam D
CONFIDENTIAL INFORMATION — Disclosure — Exception — FIRST-TIER TRIBUNAL — Jurisdiction — Disclosure: Mitchell (Mark) v Revenue and Customs Comrs, 10 Mar 2023  EWCA Civ 261;  WLR(D) 118, CA
COSTS — Assessment — Summary: R (Isah) v Secretary of State for the Home Department, 14 Mar 2023  EWCA Civ 268;  WLR(D) 121, CA
CRIME — Sentence — Offences against the person: R v Dixon (David), 17 Mar 2023  EWCA Crim 280;  WLR(D) 133, CA
CRIME — Sentence — Sexual offences: R v Ahmed (Nazir) (R v Stansfield (David), R v Priestley (Steven), R v W (R), R v Hodgkinson (Peter)), 17 Mar 2023  EWCA Crim 281;  WLR(D) 131, CA
EMPLOYMENT — Pension scheme — Amendment: R (Fire Brigades Union) v HM Treasury (R (British Medical Association) v HM Treasury), 10 Mar 2023  EWHC 527 (Admin);  WLR(D) 125, KBD
IMMIGRATION — Special Immigration Appeals Commission — Costs: C7 v Secretary of State for the Home Department (C3 v Secretary of State for the Home Department, C4 v Secretary of State for the Home Department), 13 Mar 2023  EWCA Civ 265;  WLR(D) 119, CA
INTERNATIONAL LAW — Exercise of sovereign authority — Contract: The Law Debenture Trust Corpn plc v Ukraine, 15 Mar 2023  UKSC 11;  WLR(D) 127, SC(E)
PRISONS — Prisoners’ rights — Release on licence: R (Bailey) v Secretary of State for Justice, 15 Mar 2023  EWHC 555 (Admin);  WLR(D) 130, DC
REVENUE — Stamp duty land tax — Conveyance or transfer on sale: Fanning v Revenue and Customs Comrs, 13 Mar 2023  EWCA Civ 263;  WLR(D) 126, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Pink Tape: “I want” doesn’t get: Thames Valley Police v Ms F  EWFC 28, Fam Ct
RPC Perspectives: Tribunal dismisses HMRC’s appeal and confirms notification under DOTAS is only required for the first occasion the scheme is implemented: Revenue and Customs Comrs v Root2 Tax Ltd (No 3)  UKUT 353 (TCC);  STC 171, UT (TCC)
A Lawyer Writes: Raab interfered with justice process: Prisoners may have been wrongly released or detained, court finds: R (Bailey) v Secretary of State for Justice  EWHC 555 (Admin), DC
Inforrm’s blog: Case Law, Strasbourg: Halet v Luxembourg, LuxLeaks, Grand Chamber strengthens whistleblowers protection: Halet v Luxembourg (Application no. 21884/18), ECtHR
UK Supreme Court Blog: New Judgment: The Law Debenture Trust Corporation plc v Ukraine (acting upon the instructions of the Cabinet Ministers of Ukraine)  UKSC 11: The Law Debenture Trust Corpn plc v Ukraine  UKSC 11, SC(E)
Transparency Project: ‘Somewhere in the history of this case we have lost our humanity’: Warwickshire County Council v Mother  EWHC 399 (Fam), Fam D
Nearly Legal: Overlooking — an overview: Fearn v Board of Trustees of the Tate Gallery  UKSC 4;  2 WLR 339;  WLR(D) 53; The Times, 6 February 2023, SC(E)
Law Society Gazette: Fraudster convicted decade ago must pay £92,500: Director of the Serious Fraud Office v Kallakis (Achilleas Michalis), Confiscation order, Crown Ct
Free Movement: Permission granted on additional grounds in the Rwanda case in the Court of Appeal: R (AAA) v Secretary of State for the Home Department, (Permission to appeal)  EWCA Civ 266, CA
Free Movement: No recourse to public funds policy found unlawful (again): R (HAA) v Secretary of State for the Home Dept, Consent order, KBD
2023 Pupillage Award
If you are taking up pupillage in Autumn 2023, paid a total for the pupillage year of no more than £30,000 (including guaranteed earnings), you could receive our top-up award of a further £13,000.
In recognition of the difficulties faced by many talented individuals during pupillage, the ICLR currently awards an annual bursary worth £13,000 in direct financial assistance to a pupil during the course of their 12 month pupillage in Chambers.
To find out more, see Application page.
Tweet of the week
…is wiser than it nose.
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.