Weekly Notes: legal news from ICLR — 22 May 2017
This week’s roundup includes election manifestos, divorce reform, crime and punishment, and legal services.
General Election manifestos launched
The three main political parties launched their manifestos last week. On Tuesday 16 May, Labour launched its previously leaked manifesto, under the title For The Many Not The Few. On Thursday, the Conservatives launched theirs, entitled Forward, together — Our Plan for a Stronger Britain and a Prosperous Future and the Liberal Democrats theirs, Change Britain’s Future. One of the more colourful and imaginative policies listed in the latter is to
Break the grip of the criminal gangs and protect young people by introducing a legal, regulated market for cannabis.
Among the other parties, the Greens have yet to launch theirs, but we’ll flag it up when they do. [Update. They have now done so: it is here.] In the last election, they were the only party promising to reverse the legal aid cuts. This time, Plaid Cymru, whose manifesto Defending Wales, was launched on 16 May, are also promising to do so.
According to the Solicitors Journal, picking out some of the key policies on law and justice, Labour commits to restoring access to justice by “looking at reinstating legal aid in certain areas” — this harks back to the last election when Labour talked about supporting justice but seemed reluctant to commit any actual cash to doing so. Meanwhile, Lib Dems pledge LASPO review and more funding for criminal legal aid and Tories ‘consider’ ban on personal injury cold calling.
Rights Info has analysed the key politics in relation to human rights here.
You can read our analysis of the manifestos in the last election (2015) here.
Dee and Ann to part…
They’ve been together for decades, but now the time has come to recognise that Dee Vorce and Anne Cilla Ree Proceedings (aka “Money Claims”) are to go their separate ways.
The flashbulbs were popping outside First Avenue House as the troubled celebrity couple arrived in separate limos for their preliminary hearing, following the filing of a petition before the President of the Family Division in his 17th View from the President’s Chambers.
Sir James Munby P feels the time has come to sever the knot between the Proceedings. “It may have made sense for them to be together at one time,” he said, suppressing a strong urge to quote Philip Larkin, “but now the time has come to call it a day”. What he actually said was:
“Surely what is called for is a system under which (1) there is, formally, legally and procedurally, a complete de-linking — separation — of divorce and money and (2) all money claims as I have described them above are dealt with in accordance with a single set of rules providing, so far as possible, for a common form of application, a common set of forms, a common process and common procedure.”
The President made a number of other recommendations, including proposals for moving forward with the online divorce court — without, he suggests, needing to wait for primary legislation (eg under what may replace the recently abandoned Prisons and Courts Bill 2017, once we have a new government in place).
You can read a more sober account of the President’s recommendations on the Transparency Project website: Separating the divorce from the money bit.
Moors murderer Ian Brady dies
One of Britain’s most notorious murderers, responsible with co-defendant Myra Hindley for the deaths of at least five children in the 1960s, has died.
There was some discussion about whether Brady “deserved” an obituary, as though an obituary were the same as a eulogy. A figure of revulsion for most, of intellectual curiosity for criminologists and perhaps of unhealthy fascination for a dangerous few, Brady (like his partner Hindley and like other serial killers) was certainly a figure of public and historical interest and an obituary (such as this one in the Guardian) seems no more inappropriate than court reporting of his trial and the crimes he committed.
For a useful introduction, see also this blog by Obiter J: The Moors Murders ~ Death of Brady
Did Brady cheat the hangman?
Between 1963 and 1965, Brady and his accomplice Hindley tortured, sexually abused and killed five youngsters before burying their bodies on the moors outside Manchester. Both were sentenced to life imprisonment. Had they been caught and tried before the Murder (Abolition of Death Penalty) Act 1965 came into force, could they have been hanged?
The Homicide Act 1957 had abolished the death penalty for what was described as non-capital murder while retaining it for a new category of capital murder, which was essentially murder carried out in association with some other serious offence. Section 5(1) set out the offences for which the death penalty was retained:
(a) any murder done in the course or furtherance of theft;
(b) any murder by shooting or by causing an explosion;
( c) any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody,
(d) any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting;
(e) in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or of a person assisting a prison officer so acting.
None of these includes sadistically torturing or sexually abusing a child, or indeed an adult. Nor do they include offences relating to, say, preventing the proper burial of a body. But a charge on the indictment could, perhaps, have been framed in relation to the theft, not of the child’s body, but of his or her clothes, shoes, spectacles, etc. There might be some argument about whose property they were, and whether they had been permanently deprived of their use. A more serious obstacle would be having to argue that the primary motive for abusing and murdering the children was to steal their garments. On the whole, it seems unlikely, and rather demonstrates the weakness of the 1957 Act as a bulwark against the “worst sort of” murder, while advancing the cause of penal reform in relation to less heinous killings.
This means that even if the Moors Murderers had been apprehended before the coming into force of the 1965 Act, they would still have received a sentence of life imprisonment for murder. In their case, life really did mean life; both have died in detention, albeit Brady was eventually moved to a secure hospital by reason of his mental state.
A very interesting history of the death penalty and its abolition (and retention in some places) can be found here: The Abolition of the Death Penalty in the United Kingdom: How it Happened and Why it Still Matters, by Julian B Knowles QC (The Death Penalty Project)
The Oxford student stabbing case
The case of Lavinia Woodward, a 24-year-old medical student at Oxford, who pleaded guilty to unlawful wounding after stabbing her boyfriend with a breadknife during a drink and drug fuelled row, has drawn forth quite a bit of comment after the judge, in deferring sentence, indicated that she might be spared jail to avoid blighting her promising medical career.
Despite being a medic, Lavinia has struggled with drug addiction and the purpose of the deferment of sentence is to see if she can turn her life around, stay clean, and make a go of that career in which (it is said) she shows so much promise. Her chosen specialism is said to be cardiac surgery. (Speaking entirely for myself, but with the experience of open heart surgery, I am not sure I would want to go into theatre knowing I might be operated on by a former breadknife-wielding coke-fiend. But it’s been suggested that her conviction would put paid to that anyway.)
Some of the comment has been along the “one law for the rich…” lines, implying that it was only because frightfully super Lavinia is a photogenic middle class student at Oxford that it was important to prevent a spell in chokey blighting her promising career. Not so, says Secret Barrister in a careful explainer. It’s often done for lower class defendants with educational prospects, or indeed job prospects (if they are genuine); it’s all in the sentencing guidelines.
Professor Richard Moorhead remained unconvinced, suggesting in his blog post, The Breadknife of Legal Reasoning, that the problem wasn’t the sentencing guidelines but the exercise of discretion within them, and the risk of unconscious bias, about which there should be more research, he thought. Secret Barrister duly responded by considering more generally the purpose of blogging in Why I write .
In the mainstream media, what looked initially as a rather facetious take on the case by Simon Jenkins in the Guardian turned out to be an argument for greater leniency in cases generally: Why the Oxford stabbing student really is too talented for jail.
Predictably enough, there soon came a negative response, from the Telegraph, suggesting that Sparing prison for clever student ‘sends wrong signal to victims’.
Standard of proof in disciplinary hearings
A consultation has been launched by the Bar Standards Board on the question of the standard of proof to be applied in disciplinary hearings against barristers. Where barristers and others subject to the disciplinary regime of the BSB are accused of professional misconduct, the standard currently applied is the criminal standard (satisfied “so as to be sure” or “beyond a reasonable doubt”).
The BSB is now inviting views on whether it should amend its regulatory arrangements to allow the civil standard to be applied (“on the balance of probabilities” or “more likely than not”), in line with other professional regulators.
The consultation will run from 2 May 2017 to 21 July 2017.
Regulatory objectives and professional independence
The Legal Services Board is to meet with the deputy president of the Supreme Court, Baroness Hale of Richmond, to discuss the apparent conflict between the LSB’s regulatory objectives, which are primarily focused on consumer interests (ie service to the client), and the independence of the legal profession, which requires lawyers (in the event of a conflict) to put their duty to the court first.
Legal Futures reports that the LSB will meet Hale next month, after her comments in late March to the House of Lords’ select committee on the constitution, where she was giving evidence with Supreme Court president Lord Neuberger.
The conflict may be purely a matter of perception but it is not the first time the LSB’s focus on what it sees as the needs of consumers has led to conflict with the professional lawyers and regulators whom it supervises.
Solicitors Journal Awards 2017
The Solicitors Journal Awards 2017 took place after a black tie dinner at the Grand Connaught Rooms on 17 May. Among the categories for which there were prizes was Chambers of the Year, for which ICLR’s Paul Magrath was one of the judges. This was won by Serjeant’s Inn Chambers, from a very competitive shortlist that also included 5 St Andrew’s Hill, 7 King’s Bench Walk and Cornerstone Barristers.
Most of the prizes were, not surprisingly, for solicitors and their firms. You can see the full list of winners here. The prizes were presented by Brian Moore, former England rugby player and one-time litigation solicitor, who began the evening with an entertaining speech.
There was also a moving and effective appeal for the awards’ charity partner, Save the Children, by Sean Jones QC, whose initial Billable Hour appeal raised hundreds of thousands of pounds from lawyers and others donating the value of an hour’s work. A new appeal was launched in 2016, and you can continue to donate via this link.
Sir Henry Brooke: Knight of the Order of Skanderbeg
Also at the dinner, and one of the judges of the awards, was Sir Henry Brooke, whom many were congratulating on having just received, from the President of Albania at a ceremony at the RAC Club in Pall Mall, the insignia of his appointment as a Knight of the Order of Skanderbeg. As he explains on his blog, Skanderbeg is the Albanian national hero and Sir Henry has become something of a hero to the Albanians for his work in recent years, when president of the Slynn Foundation, in helping the government and judiciary to reform their legal system, reduce corruption, and promote the rule of law.
‘In our present unhappy political climate some people speak carelessly of our leaving the Council of Europe — as well as the European Union — as victories to be won if we are to re-establish so-called control of our affairs. From my experience in Eastern Europe — and not only in Albania — it would be nothing short of tragic if we were to do so because it gives us a means of proselytising about the rule of law and the independence of the judiciary in a manner which would lack conviction if we were to slam the door on the Council of Europe, too.’
Dates and Deadlines
The Bar Council 2017 Law Reform Committee Essay Competition is open to pupils, students studying for a qualifying law degree or approved Graduate Diploma in Law course, Bar Professional Training Course students in England & Wales and those aiming for a career at the Bar.
Prizes £4,000 winner, plus runner up, GDL entry and Highly Commended categories. All awards will be presented at the Law Reform Lecture on Friday 15 December 2017.
Completed Application form must be submitted no later than 17:00 on Friday 29 September 2017.
Law (and injustice) from around the world
Northern League MEP ordered to compensate black minister over racist slurs
Northern League MEP Mario Borghezio (pictured) has been order to pay Italy’s first black minister, Cécile Kyenge, who was born in the Democratic Republic of Congo, 50,000 euros by a court in Milan, after making repeated racist slurs against her. The sum awarded represents an indemnity payable to his victim following Borghezio’s conviction for aggravated defamation on grounds of racism, for which he was also fined €1000.
According to the BBC, “Ms Kyenge, who trained as an ophthalmologist in Italy, found herself subject to abuse after she was named as integration minister in 2013 — including having bananas thrown at her during a political rally and being compared to an orang-utan.”
In 2013 the Northern League MEP said that the then minister wanted to “bring his tribal traditions in Italy” and that “the Africans belong to an ethnic group very different from ours.”
Borghezio’s CV on the European Parliament website shows that he has a degree in law and has been “called to the Bar” and served as Under-Secretary of State for Justice in the 1990s before becoming an MEP in 2001. His immunity from prosecution as an MEP was withdrawn by the Committee on Legal Affairs of the European Parliament in a decision dated 20 October 2016, in which it was observed that he had made the offensive remarks during a radio interview and:
the facts of the case, as manifested in the documents provided to the Committee on Legal Affairs and in the hearing before the latter, indicate that the statements he made during the interview have no direct and obvious connection with his parliamentary activities;
It is not the first time Borghezio’s immunity from prosecution has been withdrawn, either. In 2006 his immunity was lifted to enable him to be prosecuted for an offence of spraying graffiti outside a court during a political demonstration; and there have been other occasions since then.
Couple stoned to death
An unmarried couple were stoned to death in public, for violating Islamic law, according to the Guardian. The incident happened in north-east Mali, in an area where jihadi groups vie for control against domestic and foreign forces. During their brief control of key towns in the north, jihadist groups imposed a version of Sharia law which forced women to wear veils and set whipping and stoning as punishment for transgressions. The stoning came on the eve of an expected visit to Mali by the new French president, Emmanuel Macron, who was due to meet French troops stationed there.
Trump’s ‘big foreign trip’
President Donald Trump has arrived in Saudi Arabia on the first leg of his big foreign trip. He was welcomed with a sword dance and has made a speech about how the Arab nations must work hard to drive out extremism. Some big arms deals have been done, and no one has embarrassed anyone by talking about human rights, though apparently Ivanka Trump has (apparently without irony) praised the progress the Saudis have made with women’s rights, according to USA Today.
“As a female leader within the Trump administration, my focus is to help empower women in the United States and around the globe,” she said...
While Trump parades himself in Arabia, back home in Washington the man he sacked and later described (to the Russians) as a “nut-job”, namely former FBI director James Comey, prepares to testify against him in public at an open hearing of the Senate intelligence committee during the US inquiry into Russian interference. The Guardian reports that Donald Trump faces new revelations as Comey prepares to testify.
Meanwhile, in Europe
People think Trump is a laughing stock, according to Politico Magazine, reporting on how European officials are looking forward to meeting the US President. Comments reporter Susan B Glasser heard in Berlin last week from senior European officials included “chaos”, “circus” and, yes, “laughingstock”.
Yet, for all that, “People are less worried than they were six weeks ago, less afraid,” according to a senior German government official she spoke to. Initially it seems officials in Europe were concerned about what his foreign policy objectives might be, viewing him as an ideologue with whom they disagreed. Now, says Glasser, “they see the clownish nature” of what increasingly appears to be “an ill-prepared newcomer to the world stage, with uninformed views and a largely untested team”.
“Trump’s tumultuous last two weeks — from firing his FBI director to allegedly sharing highly classified information with Russian officials even as a formidable special counsel was being named to investigate his campaign team’s possible collusion with the Kremlin — has them still confused about his foreign policy. But now they are more appalled than afraid of the man with whom they have no choice but to partner.”
Vanity Fair reports that
NATO leaders are reportedly pulling out all the stops to make sure that America’s infamously thin-skinned, attention-deficit president is kept engaged and entertained when he lands in Brussels on May 24 for the fourth leg of an itinerary that includes Riyadh, Jerusalem, and Rome, before ending with a G7 meeting in Sicily.
In their effort to make the usually stuffy affair exciting enough to hold the interest of a easily distracted septuagenarian whose media diet consists primarily of cable news and who prefers “as little as possible” in his daily intelligence briefings, NATO organizers are reportedly asking heads of state to limit themselves to two-to-four minutes of discussion time.
Tweet of the Week
A comment on the Theresa May’s announcement last week that the Tories were the party of working people and they would be offering them lots of lovely new employment rights (after making tribunal fees unaffordable to most).
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.