Weekly Notes: legal news from ICLR, 21 November 2022
This week’s roundup of legal news includes fraud, public order, open justice, and the Post Office IT inquiry, as well as recent case law and commentary.
The National Audit Office (NAO) has reported on the government’s Progress combatting fraud, finding in general that there hasn’t been much. The report focuses primarily on the Home Office. The NAO previously reported in 2017 urging the government to do more, after finding that “fraud had been overlooked by government, law enforcement and industry”. However,
“While it has taken some limited actions to improve its response to fraud, five years on, the Department is not yet leading an effective cross-government approach and has had limited influence over its partners in the public and private sectors. It has lacked a clarity of purpose and robust data on the scale of the problem and the resources being deployed, and it has no reliable way of measuring the financial impact or value for money of its policies.”
Fraud currently accounts for around 41% of all crime against individuals, and affects nearly 7% of all adults. Criminals can employ a wide variety of approaches to commit fraud but around 80% of fraud offences in the United Kingdom (UK) are enabled through computer technology. As the report explains:
“The Home Office (the Department) is ultimately responsible for preventing and reducing crime, including fraud. In doing so it needs to work with many other bodies including, but not limited to, the National Crime Agency (NCA), which includes the National Economic Crime Centre (a multi-agency response organisation hosted within the NCA); the City of London Police (the national lead force for fraud); other government departments; the finance, technology and telecoms sectors; and international partners.”
Among the report’s key findings were that:
- The threat from fraud is increasing and evolving but the number of frauds resulting in a charge or summons is falling.
- The government has launched overlapping strategies covering fraud and economic crime but has yet to set and report on any desired outcomes.
- The Department has limited influence over many of the organisations required to successfully combat fraud.
It makes a number of recommendations, including that the Department should complete and publish its strategy for tackling fraud as soon as possible, build on the research undertaken by the National Economic Crime Centre, and establish the relationships necessary to work effectively with overseas partners to address the threat that fraud poses.
Proceeds of crime update
Not all is lost, however. New reforms will help to recover millions more from the proceeds of crime, according to the Law Commission. The reforms, which are the culmination of a Home Office-commissioned review, would bolster the current system by giving courts more powers to enforce confiscation orders and seize offenders’ assets, limiting unrealistic orders that can never be paid back, and speeding up confiscation proceedings — allowing victims to receive compensation more quickly.
For documents and downloads, see Confiscation under Part 2 of the Proceeds of Crime Act 2002
Just Stop … protesting
The High Court has granted an injunction to prevent Just Stop Oil protesters disrupting traffic on the M25 motorway by fixing themselves to any object or structure on the motorway. According to the BBC, anyone doing so or assisting persons doing so will now be in contempt of court and could face imprisonment, an unlimited fine, and the seizure of assets. There are also injunctions in place covering M25 feeder roads and major roads in Kent and around the Port of Dover until May 2023.
While the protesters have undoubtedly caused a lot of disruption, the way the protests have been policed has also come under scrutiny after a number of journalists were arrested and detained — apparently for the offence of giving the oxygen of publicity to the protesters. After three journalists, a documentary photographer, a press photographer and a reporter for LBC, were arrested by officers from Hertfordshire Police, the force’s chief constable Charlie Hall is said to have “personally apologised” to them. According to the Press Gazette, Hall has also commissioned an independent review of the arrests and what happened, which will be conducted by another force. Speaking about the arrest of the LBC reporter, Hall said in a statement: “Though the actions of the officers at the scene are understandable, in retrospect an arrest would not have been necessary.”
Promoting a recent online seminar, Garden Court Chambers had this to say about further legislation against public protest:
“Having successfully passed one piece of draconian public order legislation, the government is already embarking on the introduction of another. The new Public Order Bill includes measures that first appeared in 2021, during the passage of what is now the Police, Crime, Sentencing and Courts Act, but which were defeated in the House of Lords.
Ministers now want to use their large parliamentary majority to revive far-reaching proposals to further clamp down on our right to protest. These are aimed particularly at movements that use peaceful direct action and civil disobedience tactics to challenge the government and corporate inaction on the climate emergency. However, expanded police powers in the Bill would have a profound impact on many other campaigners too.”
According to Parliament’s legislation page, the new Public Order Bill is
“A Bill to make provision for new offences relating to public order; to make provision about stop and search powers; to make provision about the exercise of police functions relating to public order; to make provision about proceedings by the Secretary of State relating to protest-related activities; to make provision about serious disruption prevention orders; and for connected purposes.”
Perhaps these sweeping new powers were simply being anticipated by Herts Police. However, one has some sympathy for the frustration they, and some parliamentarians, as well as motorists legitimately using the highway, may feel over the disruptive and dangerous tactics of a small number of attention-seeking individuals.
There has been further commentary on the House of Commons Justice Committee’s report, published on 1 November, Open justice: court reporting in the digital age.
Dr Judith Townend, senior lecturer in media and information law at the University of Sussex, who contributed written and oral evidence to the committee, sets out her responses to some the main recommendations, based on her experiences and research of court observation and open justice, in The practical reality of open justice and what can be done: reflections on the justice committee’s new report. Appearing initially on her Open Info and Ideas blog, it has now been reposted in two separate parts on Inforrm’s blog here and here.
Lucy Reed, chair of the Transparency Project, who also contributed evidence, has also commented on the report in particular on those aspects of it dealing specifically with Open justice in the Family Court.
On The Justice Gap, Jon Robins comments on how the Dramatic decline in press coverage of courts causing ‘democratic deficit’ and threatening ‘open justice’
A number of others who had contributed written evidence commented on the report, including Spotlight on Corruption, who tweeted:
“We support @CommonsJustice’s call for @HMCTSgovuk to “publish a citizens’ charter that outlines the public’s rights to attend proceedings and access information”. We also need continued investment to improve the accessibility and quality of remote hearings.
The importance of citizens’ rights as observers of (and in that sense also participants in) the justice system is often overlooked when official bodies such as HMCTS and the Civil Procedure Rule Committee consider the principle of open justice, often resorting to the lazy assumption that media access is sufficient as the “eyes and ears” of the public. The report betrays some of that thinking in its assumption that the privileges given to “accredited media reporters”, for example in accessing otherwise private hearings in the family courts, is somehow based on some requirement of legal training — an error forcefully challenged by legal blogger Daniel Cloake, aka Mouse in the Court, in his response to the committee’s report: Justice Committee report — A blogger responds. In other respects, however, he says he is “glad to see the committee had regard to court observers other than just the press”.
Post Office Horizon IT scandal
The ongoing Post Office IT Inquiry is bringing out evidence we haven’t heard before, said Lord Arbuthnot, speaking at the Frontline Club on 17 November, at the launch of the new and updated paperback edition of Nick Wallis’s exposé, The Great Post Office Scandal (Bath Publishing, £13.99).
But what we haven’t had yet is any consequence for those responsible, said Lord Arbuthnot, or any proper and full compensation for all who need it. And what little there has been has come far too slow.
Lord Arbuthnot also issued a plea to support and publicise the Horizon Scandal Fund, of which he is patron, to help those affected.
The former MP’s remarks were well received, as were those by Wallis himself and by Vipin Patel from Horspath, Oxfordshire, one of the victimised sub-postmasters, who spoke movingly but also with some humour recalling his ecstatic reception back home in his village after being exonerated by the Court of Appeal. Also present at the lively event hosted by David Chaplin of Bath Publishing were Ian Henderson and Ron Warmington of Second Sight, the forensic accountants whose report on Horizon’s shortcomings the Post Office tried their best to suppress; Paul Marshall KC and Flora Page, barristers for some of the wronged sub-postmasters; freelance journalist Rebecca Thompson who has covered the scandal since her investigation for Computer Weekly back in 2008–9; Lance Steen Anthony Nielsen, whose play about the scandal, False Accounts — Exposing the Post Office Cover-Up, recently had a triumphant run in Birmingham and is expected to be staged soon in London; and Prof Richard Moorhead, of Exeter University law school, whose Evidence-based Justice Lab has been considering the professional conduct issues arising from the prosecution of post office employees and sub-postmasters/ mistresses (SPMs) by Post Office Limited. And among the many former sub-postmasters present was Seema Misra, who was kind enough to include me in her photographs and spoke to me forcefully about the lack of shame or of personal consequence for those in positions of power at or controlling the Post Office, as compared with the treatment of the victims such as her.
Other recent stuff
An Avoidable Death
Giles Peaker, on the Nearly Legal blog, on the recent decision by a coroner that Awaab Ishak’s avoidable death from a respiratory condition caused by exposure to mould in his home, had been the direct result of a failure by his family’s landlord, Rochdale Boroughwide Housing (RBH) to meet its obligations under section 9A of the Landlord and Tenant Act 1985 (as amended by Homes (Fitness for Human Habitation) Act 2018). Peaker apologises for any intemperance owing to his anger at failings which he says are common among both social housing and private landlords.
Sky News has now reported that Gareth Swarbrick, the CEO of RBH, has now been removed after days of political pressure, as predicted by Peaker in an earlier tweet.
Where public interest and public benefit meet: the application of charity law to journalism
In an open access article in the Journal of Media Law, Steven Barnett, Tom Murdoch and Judith Townend discuss how recognition of public interest journalism as charitable can be achieved through more constructive interpretations of the existing law. PIJ can offer a solution to the need for reliable public information in the context of a decline in trustworthy media coverage of important public subject matter and the harmful effects of misinformation and fake news.
New data shows family courts crippled by delays
Backlogs and delays continue to hamper the family law courts, causing uncertainty for those involved, the Law Society said last week, responding to new statistics published by HM Courts & Tribunal Service (HMCTS).
“We are extremely concerned about the effect delays and backlogs in the family courts are having on people seeking justice,” said [Law Society] president Lubna Shuja. “Today’s data shows there is a backlog of more than 110,000 cases for the family courts, and cases are taking, on average, almost a year to complete.”
New reforms to recover millions more from the proceeds of crime
The Law Commission has published new reforms to overhaul the system for recovering the proceeds of criminal activities. The reforms, which are the culmination of a Home Office-commissioned review, would enhance enforcement powers and could lead to the recovery of millions of pounds of additional funds from offenders each year.
- Read the full report: Confiscation under Part 2 of the Proceeds of Crime Act 2002
- Read a Summary of the report
The Three Eras of Opposition to the Human Rights Act
In the latest post on the UK Constitutional Law Association blog as part of a series on ‘The Human Rights Act After 22 Years’, following the SLS Annual Seminar held in November 2022, Frederick Cowell identifies and discusses the successive waves of political and ideological opposition to the HRA over the last quarter century. Over that period, he concludes, “opposition to the HRA has reflected the changing nature of the society whose rights it protects”.
A legal life: Professor Michael Zander KC
Profile by Grania Langdon-Down in the New Law Journal of the lawyer, legal academic and great public explainer of the law as he celebrates his 90th birthday. Also marking the occasion, Joshua Rozenberg recalls that when he began in radio current affairs broadcasting, Zander was someone who “could be relied on to explain any legal topic, however obscure, at a moment’s notice”.
Another legal life: Lord Woolf publishes memoirs
According to Joshua Rozenberg in the Law Society Gazette (p10), despite his glittering judicial career the widely admired Lord Woolf is “as unthreatening as Paddington Bear”. At any rate, he seems to have led a charmed life, in professional terms, about which he writes in An Uncommon Lawyer — though perhaps in less detail than Rozenberg would have liked, about some of the other major legal figures with whom he crossed or shared paths. Perhaps he still feels bound by that reticence encouraged by Lord Hailsham, who was Lord Chancellor when Woolf was first appointed to the High Court bench, and who Rozenberg says “did not trust any of his his judges to speak to reporters”.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
ENVIRONMENT — Natural habitats — Conservation of wild fauna and flora: Dansk Akvakultur, acting for AquaPri A/S v Miljø- og Fødevareklagenævnet, 10 Nov 2022 (Case C-278/21); EU:C:2022:864;  WLR(D) 447, ECJ
EUROPEAN UNION — Electronic communications networks and services — Unfair burden on provider: Eircom Ltd v Commission for Communications Regulation, 10 Nov 2022 (Case C-494/21); EU:C:2022:867;  WLR(D) 448, ECJ
EVIDENCE — Witness statements — Admissibility: Correia v Williams, 09 Nov 2022  EWHC 2824 (KB);  WLR(D) 441, KBD
CRIME — Harassment — Stalking causing serious alarm or distress: R v Musharraf (Sana), 09 Nov 2022  EWCA Crim 1482;  WLR(D) 446, CA
CRIME — Sentence — Practice: R v Nguyen (Hanh Tuyet), 04 Nov 2022  EWCA Crim 1444;  WLR(D) 444, CA
CRIME — Sexual offence — Prevention order: Director of Public Prosecutions v Charlesworth, 09 Nov 2022  EWHC 2835 (Admin);  WLR(D) 445, KBD
MARRIAGE — Divorce — Foreign decree, recognition of: Parveen v Hussain, 04 Nov 2022  EWCA Civ 1434;  WLR(D) 431, CA
PRACTICE — Judgment — Consequential issues: Royal & Sun Alliance Insurance Ltd v Tughans, 09 Nov 2022  EWHC 2825 (Comm);  WLR(D) 438, KBD
ROAD TRAFFIC — Goods vehicle — Length: Driver and Vehicle Standards Agency v Titan Containers Ltd, 03 Nov 2022  EWHC 2780 (Admin);  WLR(D) 440, KBD
SHIPPING — Limitation of liability — Loss of or damage to ship: MSC Mediterranean Shipping Co SA v Stolt Tank Containers BV (The Flaminia), 02 Nov 2022  EWHC 2746 (Admlty);  WLR(D) 449, KBD
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
UK Supreme Court Blog: Case Preview: News Corp UK and Ireland Ltd v Revenue and Customs Comrs: Permission to appeal to Supreme Court given
RPC Perspectives: Tribunal allows taxpayer’s appeal and confirms its holding in another company constituted a “structural asset”: Guardian Assurance Ltd v Revenue & Customs  UKFTT 234 (TC), FTT (TC)
Global Freedom of Expression (Columbia University): Straume v. Latvia: expands expression: Straume v Latvia (Application no. 59402/14), ECtHR
Law & Religion UK: Unreasonable refusal to permit the burial of murder victims: Aygün v Belgium (Appn no 28336/12);  ECHR 939, ECtHR
UK Human Rights Blog: The latest injunction against HS2 protestors bans nearly everyone anywhere on 170 mile route: High Speed Two (HS2) Ltd v Persons Unknown  EWHC 2360 (KB), KBD
Local Government Lawyer: High Court refuses to extend interim injunctions stopping hotels from accommodating asylum seekers: Ipswich Borough Council v Fairview Hotels (Ipswich) Ltd  EWHC 2868 (KB), KBD
Nearly Legal: Waking watch costs and flawed reports: Assethold Ltd v Leaseholders of Corben Mews  UKUT 282 (LC), UT (LC)
Nearly Legal: Service charges, burden of proof, and costs of proceedings: Assethold Ltd v Nelio Patricio Teixeira Franco  UKUT 285 (LC), UT (LC)
Law Society Gazette: Court thwarts ‘fishing expedition’ by Checkmylegalfees: James Brown v JMW Solicitors LLP  EWHC 2848 (SCCO), SCCO
Free Movement: Failed asylum seeker’s false identity conviction quashed: R v Elmi (Abdihakim)  EWCA Crim 1428;  WLR(D) 429, CA
Free Movement: Refusal of habeas corpus for British citizens in Syrian Camp: C3 v Secretary of State for Foreign, Commonwealth and Development Affairs  EWHC 2772 (Admin), KBD
Lawyer Watch: The Home Office: Collective failure, individual insouciance? R (HM, MA & KH) v Secretary of State for the Home Dept  EWHC 2729 (Admin), KBD (Admin)
Law & Religion UK: Alleged Islamophobia in misconduct proceedings: El Diwany v Solicitors Regulation Authority Ltd  EWHC 2882 (Admin), KBD (Admin)
Law & Religion UK: Refusal to register church land: Arnavutkoy Greek Orthodox Taksiarhis Church Foundation v Turkey (Appn no 27269/09);  ECHR 1001; Case summary, ECtHR
RPC Perspectives: Tribunal allows unilateral credit for US withholding tax even though no treaty relief available due to ‘limitation on benefits’ article: Aozora GMAC Investment Ltd v Revenue and Customs Comrs  UKUT 258 (TCC);  STC 1816, UT
Dates & Deadlines
Interim Supervision Order Consultation — till 30 November
The Public Law Working Group (PLWG) is consulting on proposals to law, policy and practice in relation to supervision orders made at the conclusion of care proceedings to support the child to live with a parent(s). The PLWG invites consultation responses from those who have a stake in, or are affected by, the children’s social care and family justice systems. This includes, but is not limited to, families and young people, legal and social care practitioners and managers, directors of children’s services/social services, practitioners and services working alongside/closely with children’s social care, the judiciary, voluntary sector organisations and practitioner bodies/associations.
For more details, see the Judiciary website.
Tweet of the Week
is from Clinical Associate Professor Rachel Gurvich of UNC School of Law, addressing the eternal anxiety of the great unknown-unknown:
Addressing the anxiety of the great unknown-unknown is why we built Case Genie on ICLR.4 : find out more.
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.