Weekly Notes: legal news from ICLR, 22 July 2024
This week’s roundup includes public order, miscarriages of justice, war crimes, and legal education. Plus bills galore, and some new case law and commentary.
Public order
Protesters sentenced
There has been a confused response to the sentencing at Southwark Crown Court of five Just Stop Oil protesters to prison terms of four, and in one case five, years’ imprisonment for masterminding protests that disrupted the M25 over four days in November 2022, when 45 protesters climbed gantries on various parts of the motorway, forcing police to stop traffic.
As the sentencing remarks of HHJ Christopher Hehir in Rex v Hallam and others (18 July 2024) make clear, the five defendants (aka the “Whole Truth Five”) were charged with conspiracy intentionally to cause a public nuisance. The widespread disruption that resulted cost almost £770,000 in economic damage and involved five separate police forces, including the Metropolitan Police whose costs exceeded £1m.
Part of the evidence came from a Zoom call in which the conspirators discussed the planning of the protests with others, including an undercover reporter from The Sun, who passed the information on to the police. For this reason, a lot of commentators have reductively condemned the sentences as being for nothing more than holding a single Zoom call, or a peaceful protest, ignoring the harmful effect and damage caused by the physical actions to which the conspiracy led. And ultimately, if the protests are designed to get attention, it’s not surprising that people pay more attention to the protest than to the message or motive behind it.
The judge rejected the submission that Hallam, in particular, had consciously desisted from direct action protest and presented no risk of further offending (at para 60):
“Your conduct during the trial, where you and three of your co-defendants set about turning the proceedings themselves into a direct action protest, compels me to reject such a submission. I stress again that your conduct during the trial does not add a single day to your sentence, but it deprives you of any mitigation based on the suggestion that you are a changed man.”
However, there is no doubting the harshness of the sentences, which the investigating police officer, Detective Inspector Chris Rudd, told The Times, far from acting as a deterrent, “might be a rallying call” for yet more protest disruption (see Police fear Just Stop Oil jail sentences will spark more protests).
He may be right. Yet more protests have been promised, according to the Standard: Just Stop Oil will use ‘all means necessary’ to disrupt summer holidays with latest airport campaign.
See also BBC: Just Stop Oil protesters jailed after M25 blocked
Guardian: Just Stop Oil jail terms raise questions over harsh treatment of protesters
Tony Dowson, in The Critic: The Just Stop Oil sentences were just (but see also Twitter exchange here.)
Open letter from Defend Our Juries in which 1200 cultural icons condemn ‘insane’ prison terms for Whole Truth Five
Joshua Rozenberg, A Lawyer Writes: Icons demand to see AG
Should the right to protest be unfettered?
This was the title of the Law Student Essay Competition 2023–24 set by the International Law Book Facility (ILBF) which has been won by Lauren Davis at the University of Dundee. The competition, which received entries from 17 different universities, was judged by Lord Thomas of Cwmgiedd, former Lord Chief Justice and a patron and founder of the ILBF, Lord Carnwath CVO, former Supreme Court Justice, and Fiona Rutherford, Chief Executive of JUSTICE. Lauren is undertaking her week’s work experience with competition sponsors McDermott Will & Emery this month.
In her winning essay she says:
“If we regard revolution as the most extreme manifestation of protest, then it could be argued that when the fetters imposed by the state on protest become so restrictive as to remove the ability to exercise fundamental rights, even protests that exceed the legal boundaries of the state may be perceived as legitimate when they align more closely with the values of the public majority.”
The ILBF is a charity that provides good quality second hand legal textbooks, donated by the UK legal community, to not-for-profit organisations in need of legal research resources across the globe. To find out more about the ILBF and the contribution students can make, see Introducing Elaf Hamid, our new Shipping Coordinator!
“Elaf is a law student at the University of Surrey, currently on her placement. She has taken the role of ILBF’s Shipping Coordinator for the remainder of the academic year.”
You can also donate, either books or money, to the charity.
Politics
King’s Speech
“This will be a government of service”, said the Prime Minister, Sir Keir Starmer KC, introducing his government’s first King’s Speech, “committed to uniting the country in our shared mission of national renewal.” The speech itself, though given by the King, is designed to set out the programme of legislation that the government intends to carry out during the forthcoming Parliamentary session.
It contained an impressive list of bills, covering economic recovery, transport, green energy, safer streets and more secure borders, education, housing, health, equality, constitutional reform, defence, and diplomacy. A full list of bills can be found in the Briefing Notes.
See also coverage and commentary from the BBC, The Conversation, Institute for Government, Open Data Institute, Local Government Association, Russell Sandberg, Out-Law, NHS Providers, Directory of Social Change, Chartered Governance Institute, British Property Foundation, and the Constitution Society.
Crime
Miscarriages of justice
The Criminal Cases Review Commission (CCRC) has published the report of an independent review by Chris Henley KC into the organisation’s handling of the Andrew Malkinson case. Malkinson was wrongly imprisoned for 17 years for a rape he did not commit and only had his conviction overturned last July after the CCRC rejected his case twice previously in 2012 and 2020. The Henley report makes severe criticism of the CCRC concluding that it could have sent the case back as early as 2009. The report highlights internal documents showing that in 2022 the CCRC was contemplating rejecting Malkinson’s case a third time despite
‘compelling’ DNA evidence.
Malkinson’s case is now the subject of a public inquiry led by Her Honour Judge Sarah Munro KC, to investigate the handling and role of Greater Manchester Police, the Crown Prosecution Service, as well as the CCRC. It will cover the handling of the case prior to Malkinson’s conviction and his subsequent applications to appeal. The Inquiry shall set out lessons to be learned.
There have been calls for the chair of the CCRC, Helen Pitcher, who has already apologised for its failures in Malkinson’s case, to resign or be sacked. It might also be pointed out that the organisation has lost much of the funding it relies upon and is constrained by terms of reference that may be too limited in scope to enable it effectively to achieve its aims. In any event, it is said, lessons must be learned. Henley KC himself observed, on publication of his report:
“It is almost impossible to believe that this is the only case that has not been handled properly. The CCRC must make every possible effort to identify other applications where mistakes might have been made, and immediately implement the recommendations made in my report”.
See also Emily Dugan, The Guardian: ‘Catalogue of failures’: watchdog missed chances to help Andrew Malkinson, report finds
Jon Robins, The Justice Gap: CCRC chair to go — as damning inquiry finds Andrew Malkinson’s case could have been referred 14 years ago
Max Hardy (junior counsel for Malkinson in his appeal), blogging as Counsel of Perfection: The Disease Not The Cure — Andrew Malkinson & The CCRC
BBC: Other prisoners could be freed by case review — Malkinson
And a reminder that calls for reform of the CCRC and the mechanism for reviewing miscarriages of justice are nothing new: in 2012 Sandra Laville wrote this in The Guardian: Criminal Cases Review Commission must be reformed, say campaigners.
International law
ICJ finds against Israel
In its Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, read out by Judge Nawaf Salam, President of the Court, on 19 July 2024, the International Court of Justice (by a majority) declares that Israel’s occupation of the Palestinian territories since 1967 violates international law, and that Israel should end its occupation as soon as possible and make full reparations.
The questions on which the advisory opinion of the Court was requested are set forth in resolution 77/247 adopted by the United Nations General Assembly on 30 December 2022. So this was not a decision of the court prompted by the current conflict between Israel and Gaza which broke out in response to the Palestinian terrorist attacks on 7 October 2023. Nevertheless, there must be a suspicion that the opinion may have been influenced by subsequent events. At any rate, it is likely to be understood or misunderstood in that context — or confused with the completely separate case brought before the ICJ by South Africa in which the court issued provisional measures in January, and the war crimes investigation against senior figures in both Israel and Palestine launched by the chief prosecutor of the International Criminal Court (ICC) in May — and simply add to the tournament of whataboutery by which any path to a negotiated and lasting (ie forward-looking) peace will be obstructed.
Guardian: UN court orders Israel to end its occupation of Palestinian territories
EJIL: Talk!, The Prohibition of Annexations and ICJ’s Advisory Opinion on the Occupied Palestinian Territory
Joshua Rozenberg, A Lawyer Writes: ICJ risks its reputation
HRW finds against Palestinians
Meanwhile, a 236-page report, “‘I Can’t Erase All the Blood from My Mind’: Palestinian Armed Groups’ October 7 Assault on Israel,” published by Human Rights Watch last week documents several dozen cases of serious violations of international humanitarian law by Palestinian armed groups against civilians in Israel.
The international advocacy group’s report finds that Palestinian fighters committed summary killings, hostage-taking and other war crimes, and the crimes against humanity of murder and wrongful imprisonment, in the course of the Hamas-led incursions into Israel on 7 October 2023. It says all the hostages should be freed immediately.
These findings, though belated, are hardly surprising. The belatedness may be explained by the nature of the investigation:
“Between October 2023 and June 2024, Human Rights Watch interviewed 144 people including 94 Israeli and other nationals who witnessed the October 7 assault, victims’ family members, first responders, and medical experts. Researchers also verified and analyzed over 280 photographs and videos taken during the assault and posted on social media or shared directly with Human Rights Watch.”
Legal education
Setting the Bar: how hard can it be?
The Canadian online legal magazine Slaw has an article How Hard Could It Be to Write a New U.S. Bar Exam? It reports that the National Conference of Bar Examiners (NCBE) is in the midst of developing a new US bar exam, called the Next Gen Bar, and questions whether people always appreciate the difference between teaching and enabling people to learn — and by extension the difference between setting an exam and writing questions at the correct level of difficulty to evaluate professional-level abilities.
One reason why the examiners might want to reassess the process of assessment is the ease with which non-human actors, such as Chat-GPT, seem to be able to pass the bar exam (see ABA Journal: Latest version of ChatGPT aces bar exam with score nearing 90th percentile). At the time this was touted as evidence of the advancement of large language models, but another way of looking at it is to question the value of an exam that fails to challenge a robot. The same question ought to be challenging the minds of educators everywhere, given the increasing ubiquity of AI.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4
ARBITRATION — Appeal — Court’s jurisdiction: Process & Industrial Developments Ltd v Federal Republic of Nigeria, 12 Jul 2024 [2024] EWCA Civ 790; [2024] WLR(D) 332, CA
CIVIL PARTNERSHIP — Dissolution — Financial provision: N v J, 15 Jul 2024 [2024] EWFC 184; [2024] WLR(D) 333, Fam Ct (Peel J)
CROWN — Minister — Civil Service Code: R (FDA) v Minister for the Cabinet Office, 05 Jul 2024 [2024] EWHC 1729 (Admin); [2024] WLR(D) 316, KBD
EUROPEAN UNION — Freedom of movement — Right to reside: Rexhaj v Secretary of State for the Home Department, 11 Jul 2024 [2024] EWCA Civ 784; [2024] WLR(D) 326, CA
INDUSTRIAL RELATIONS — Employment tribunals — Unless order: Chumbu v Disabilities Trust, 09 Jul 2024 [2024] EAT 113; [2024] WLR(D) 336, EAT
LICENSING — Premises licence — Review: Walk Safe Security Services Ltd v Lewisham London Borough Council, 11 Jul 2024 [2024] EWHC 1787 (Admin); [2024] WLR(D) 331, KBD
PATENT — Invention — Exclusion from patentability: Emotional Perception AI Ltd v Comptroller General of Patents, Designs and Trade Marks, 19 Jul 2024 [2024] EWCA Civ 825; [2024] WLR(D) 339, CA
PLANNING — Development — Planning permission: R (Gurajena) v Newham London Borough Council, 05 Jul 2024 [2024] EWHC 1745 (Admin); [2024] WLR(D) 318, KBD
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Panopticon: “What’s the Deal?” Corporate Sponsorship and FOIA 2000: Garrard v Information Commissioner[ 2024] UKFTT 601 (GRC), FTT
Law Society Gazette: Uyghur v NCA — and how it could affect law firms: R (World Uyghur Congress) v Secretary of State for the Home Department, [2024] EWCA Civ 715; [2024] WLR(D) 292, CA
Local Government Lawyer: The Supreme Court on whether collateral warranties are construction contracts: Toppan Holdings Ltd v Simply Construct (UK) LLP [2024] UKSC 23; [2024] WLR(D) 320, SC(E)
Local Government Lawyer: Appropriate assessment and multi-stage consents: C G Fry and Son Ltd v Secretary of State for Levelling Up, Housing and Communities [2024] EWCA Civ 730; [2024] WLR(D) 300, CA
A Lawyer Writes: End-of-life ruling: Whittington Health NHS Trust v XY [2024] EWCOP 37 (T3), Ct of Protection
Mental Capacity Law and Policy: Following through a decision to withdraw life-sustaining treatment: a new dilemma for the Court of Protection: NHS North West London Integrated Care Board v Z [2024] EWCOP 35, Ct of Protection
And finally…
Post of the week
is from legal commentator David Allen Green, via LinkedIn, on the recent developments in the US election.
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.
