Weekly Notes: legal news from ICLR, 21 October 2019
This week’s roundup comes from Singapore where Team ICLR are discussing law reporting with the Singapore Academy of Law, before flying on to a law librarians’ conference in Sydney next week. Topics covered include professional [mis]conduct on social media, climate rebellion suppression, media regulation or lack of it, banking boobs and, er, bastards.
Team ICLR is in Singapore this week for talks with Singapore Academy of Law, publishers of the Singapore Law Reports (SLR), about topics of mutual interest, before we fly on to Sydney for the annual conference of the International Association of Law Librarians (IALL).
The talks with SAL have been taking place in their offices in the Supreme Court, the somewhat futurist building with a spaceship on top, depicted in our photograph above. That disc-like superstructure contains a viewing gallery as well as the Court of Appeal and senior judges’ chambers. The building was designed by Norman Foster & Partners. It provides twelve civil, eight criminal and three appeal courts.
The old Supreme Court building next door is now part of the National Gallery, along with the former colonial City Hall building. This holds an impressive collection of South East Asian art as well as historical artefacts and archives relating to Singapore’s history, constitution and legal system. The views from the top are fantastic. Down in the bottom, however, there are some rather less exalted examples of the original 12 holding cells for criminal defendants. Note the external flushing mechanism for the toilets, designed to prevent the risk of self-harm by inmates.
XR seek review of protest ban
Lawyers For Extinction Rebellion have declared their intention to seek judicial review of the excessive use by the Metropolitan police of the power under section 14 of the Public Order Act 1986 (Imposing conditions on public assemblies) in imposing a London-wide ban on their protests earlier this month. An XR statement said:
“This move by the Met is an unprecedented attempt to curtail peaceful protest. In response to this, we have taken the first steps towards a judicial review — our lawyers have delivered a ‘Letter before Action’ to the Met and asked for an immediate response.
“This erosion of democracy is an assault on our fundamental right to protest…It is during these moments that we must seek strength through coming together.”
Their press release demands:
“Should the Commissioner seek to defend this proposed claim our clients seek, by way of pre-action disclosure, all documents including risk assessments, minutes of meetings and correspondence (within the MPS and with third parties) which the Commissioner and those acting under her direction and control have considered in connection with the MPS decision to impose the purported s.14 condition under challenge. Such documents should include those upon which the Commissioner relies both in relation to the necessity and proportionality of imposing the conditions and the methods by which they have been communicated to their intended recipients.
Please also confirm the time at which the purported condition was imposed, the methods by which the purported condition have been communicated.”
The Media Standards Trust has issued what most of IPSO’s members would describe as a “damning report” on its failure to comply with the majority of the Leveson Inquiry recommendations for an independent media regulator. The MST report, titled The Independent Press Standards Organisation (IPSO) — Five Years On, examines the regulator’s performance over its first five years of operations, comparing its compliance with the 38 recommendations of the 2012 Leveson Report with the findings of an earlier MST review dating from 2013.
The 2013 report showed that IPSO satisfied just 12 of the 38 recommendations for achieving a “genuinely independent and effective system of self-regulation”, failing to satisfy 20, with six cases where there was insufficient evidence to decide whether IPSO satisfied the recommendation or not. The report also found an unnecessarily high degree of industry control over the IPSO system via its Regulatory Funding Company, which (the present report notes) “substantially compromises” IPSO’s nominative claim to independence from the industry it supposedly regulates.
The 2019 report finds that, of the six cases for which there was insufficient evidence in 2013 to determine whether or not IPSO satisfied the Leveson recommendation, subsequent evidence shows that IPSO failed to satisfy any. There were two instances of changes to the IPSO system resulting in the regulator now satisfying recommendations it was previously judged not to satisfy; on the other hand, there was one case where IPSO now failed to satisfy a recommendation that was previously met. And in seven cases there have been changes to articles and regulations that relate to the satisfaction of recommendations, but in each case the regulator continues to fall short of doing so. The report also comments that:
“While changes to the regulatory system that empower the regulator at the expense of industry control are to be welcomed, the cumulative effect of these changes in most cases does not translate into IPSO satisfying the recommendations set out following the Leveson Report, and do not ameliorate the extensive control the industry can exert through the Regulatory Funding Company and through those aspects of the IPSO Articles and Regulations that present extremely high hurdles for standards investigations and which allow publications to repeatedly intervene in the investigations process. Though outside the scope of this analysis, IPSO’s inability to implement a single standards investigation over five years of operation is one additional key indicator of its lack of regulatory powers and independence.”
The MST review also pours considerable scorn on the review conducted by Sir Joseph Pilling in 2016 at the behest of IPSO, which was based largely on interviews with employees of IPSO itself or with news organisations.
See also: Inforrm’s Blog, New Report: IPSO five years on: “fails to satisfy 25 out of 38 Leveson recommendations”
Eoin O’Dell, on his Cearta.ie blog writes about another case where, owing to the “butterfly effect” of a typo, a man in Fife was overpaid nearly £300,000 by Fife Council and now has to pay it back.
“Fife Council, in Scotland, was supposed to pay the man £59.95 a week, but accidentally paid £59,395 per week instead — and didn’t notice until around £297,000 was paid out. … This is a spectacular example of a butterfly-effect typo; and Irish Legal News has another example today: a judge calculating a half-billion dollar damages award typed $107 million rather than $107 thousand into his calculator.”
As O’Dell explains, under Scots and English law as well as Irish,
“the recipient of a mistaken overpayment must has a duty to make restitution of the mistaken payment; otherwise, retaining and spending the money could result in prosecution for theft.”
Social media guidance
The Bar Standards Board has issued (or more accurately re-issued) Social Media Guidance for barristers, perhaps in response to a perception that such a thing is necessary even for legal professionals who surely ought to be more circumspect. The problem might be a sense that private SM accounts are not necessarily to be treated as linked to one’s professional profile, but as the BSB remind practitioners:
“Remember that you are bound by Core Duty 5 not to behave in a way which is likely to diminish the trust and confidence which the public places in you or the profession at all times.”
Some lawyers are more robust than others in their criticism of people online, and no doubt there is a margin of appreciation, or deprecation; but there are limits. It can be disconcerting to see people dissing their own clients, however unlikely it may be for the client to see and recognise themselves in the post. Moreover, says the BSB:
“You should also bear in mind your duty to keep your client’s affairs confidential (CD6).”
This applies to other areas of conduct, too, such as working on a laptop on the train where others can see the confidential documents in a case. It seems elementary but all too often one reads tweets from one lawyer pointing out that they can see another lawyer (not identified) flagrantly breaching the confidentiality of their client. Even more so, discussing your client’s affairs on the phone.
See also: Legal Futures, Barristers warned over social media misuse “at all times”
Unless the problem has suddenly got much worse, however, it seems unlikely that there is actually much of an issue with lawyers abusing social media, as Lucy Reed, barrister and chair of the Transparency Project, pointed out in an article this time last year in Counsel magazine: Debrett’s* guide to social media for lawyers .
“Ultimately, though, a professional who behaves online as they would in real life is unlikely to bring their profession into disrepute. Nor does it diminish public trust and confidence to be identifiably a normal human being, who sometimes swears and says dumb things, who does ordinary stuff outside of court, and who doesn’t talk on Twitter as if they were addressing a judge. And those who get the most out of social media and who give the most to the legal and wider communities do all of those things.”
She’s not the only one who remains sceptical:
Tweet of the Week
is from Julien Foster and concerns lexicography:
That’s it for this week. A bit shorter than usual, but we’re on the road. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived.
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.