Weekly Notes: legal news from ICLR, 22 November 2021
This week’s roundup focuses on this year’s Bar Conference, plus other legal news and commentary including a new inquiry into the Novichok affair, a curb on juvenile nuptials, and some recent cases.
Bar Conference 2021
This year’s conference took place remotely on 17 to 19 November, and in person (with live streaming) at the Grand Connaught Rooms in Queen St, London on 20 November 2021. It was well organised and well attended. The theme of this year’s event was Recovery, growth and transformation. The welcome address was given by the chair, Derek Sweeting QC, who commented among other things on the present crisis in criminal justice, with the ever-growing backlog of Crown Court cases now at around 60,000, and expressed regret that he had not yet had a chance to discuss it with the Lord Chancellor, Dominic Raab MP, since the latter’s appointment two months ago.
For his part, the Lord Chancellor appeared at conference only by way of a video message. That might be in keeping with the general concept of “doing justice remotely”. But it seemed he had other matters to attend to in his own constituency:
Shadow justice secretary David Lammy MP did appear in person, however, as he took part in a panel discussion on diversity in the profession. He later tweeted:
“This morning I chose to spend my time with our country’s barristers at their first physical conference in two years. Dominic Raab was invited but instead [chose] to spend it with a [woman] dressed as a Christmas pudding.”
The first main session of the day looked at The picture of justice for the next five years. This was a panel discussion chaired by barrister and former BBC correspondent Clive Coleman, with Judge Sally Cahill QC, President, The Council of Her Majesty’s Circuit Judges; Penelope Gibbs, Founder, Transform Justice, and Sir Geoffrey Vos, Master of the Rolls. They discussed the effect of the pandemic as an accelerator of change in the justice system and the pros and cons of remote hearings — for which Vos was generally enthusiastic, sharing what he called his “vision” of online justice, but Gibbs and Cahill were rather less sanguine about, citing real world difficulties with crime cases not being heard with witnesses and jurors participating together in physical courts, or without proper public and media scrutiny. Gibbs highlighted the risk, under untried proposals included in the Judicial Review and Courts Bill, of people being able to “swipe right to plead guilty” on their phones, without the benefit of legal advice or representation. Cahill highlighted the problems for litigants in person in family cases, and the difficulty of judges being able to control a very emotional case remotely. Vos accepted that online hearings should only be held where it was appropriate and convenient to do so, and said that if the £1.3bn investment in modernisation achieved his online vision, the UK would be the first big economy to have built such a system.
Among the other sessions was a “Masterclass” on #LegalTwitter: Navigating social media at the Bar, chaired by Keith Hardie of MD Communications and featuring veteran legal blogger and heroic Billable Hour fundraiser Sean Jones QC, anonymous commentator and general thorn in the side of institutional complacency The Secret Barrister (who like the Lord Chancellor only took part remotely), their tweeted contributions being channeled by another panellist, Joanne Kane, Chair of the Bar Council’s Young Barristers’ Committee. Among the advice given was “Don’t chase approval” or use your Twitter account as a marketing channel. Jones admitted to “drafting” tweets that he didn’t end up sending. His top tip was “You do not owe anyone a row”. This echoed the Secret Barrister’s advice (possibly not always followed) that there is “no need to be argumentative”. Senior barristers taking down junior members of the profession was not a good look. Far better, said Kane, to enable students and juniors to engage with senior members of the bar. By and large, it was agreed, people on legal Twitter were supportive of colleagues and the informality of the medium helped break down barriers.
There was also a session on The role of journalism in shaping the justice system, in which Steven Rudaini, Director of External Relations & Communication, the Bar Council, quizzed Jonathan Ames, Legal Editor, The Times; Lizzie Dearden, Home Affairs & Security Correspondent, The Independent; Jess Glass, High Court Reporter, PA Media; and Tristan Kirk, Courts Correspondent, Evening Standard about the role of journalists in relation to the legal system. The ability of the media to help promote public understanding of justice was hampered by the decline in the number of court reporters, it was noted, especially in lower courts. The President of the Family Division’s recent Transparency Review was welcomed, but Glass pointed out “we need more transparency across the whole system”, citing listings as one example where more information could helpfully be provided. As Dearden said, “we can’t cover cases we don’t know about”. Another bugbear was access to papers, particularly skeleton arguments, and the sometimes bogus objections of lawyers, necessitating an application to the judge. What we need, said Kirk, was a Reporters’ Charter, entitling routine access to papers as ruled by the court in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420; QB 618, CA. Lawyers should always be willing to talk to the press, said Ames, and not cautiously hide behind the protection of speaking “off the record”.
There were many other sessions, in person or online, but this particular reporter was also needed back in our exhibitors’ stand to speak about ICLR.4 and Case Genie, its amazing new AI-drive search functionality. So we must leave it there.
- Sam Tobin, Law Society Gazette: Raab’s no-show at bar conference a ‘dereliction of duty’
- Jonathan Ames, The Times: Raab ‘ignores crisis as barristers quit’
The Home Secretary Priti Patel MP has announced that the government will establish a public inquiry into the death of Dawn Sturgess, who died in July 2018 following exposure to the nerve agent Novichok. The inquiry will be chaired by cross-bench peer and former Lady Justice of Appeal, Baroness Heather Hallett DBE. As the announcement explains:
“As the sponsoring department, the Home Office will provide support and ensure that the inquiry has the resources that it needs, reporting to the Home Secretary. An inquiry allows consideration of material and hearings in closed proceedings. This has been done for other investigations such as the inquiry into the death of Alexander Litvinenko and the Manchester Arena Inquiry.”
The death of Dawn Sturgess from the deadly nerve agent Novichok in July 2018 followed and appears to have been linked to an attempt by Russian secret agents against Sergei Skripal, a former Russian spy now living in England, and his daughter Yulia, in March 2018. A policeman, Nick Bailey, was also exposed.
The whole affair has led to two separate court cases. In the first, the Court of Protection granted an application by the Home Office for permission to take blood samples from them to enable independent verification by the Organisation for the Prohibition of Chemical Weapons (OPCW) of the initial analysis of the nerve agent by experts at the Defence, Science and Technology laboratory at Porton Down: see Secretary of State for the Home Department v Skripal  EWCOP 6. The OPCW confirmed that the chemical involved had been Novichok and the British ambassador to Russia subsequently briefed the United Nations to the effect that Russia was highly likely to be responsible for the attack.
Two Russian agents were subsequently identified by the investigative agency, Bellingcat. They appear to have abandoned a perfume bottle containing the residue of the nerve agent and it was from her innocent and unwitting contact with this that Sturgess appears to have died. An earlier decision of a coroner to limit the scope of the inquest into Dawn Sturgess’s death was held by the Divisional Court to be erroneous, in judicial review proceedings brought by and on behalf of her daughter: R (GS) v Senior Coroner for Wiltshire and Swindon EWHC 2007 (Admin);  WLR(D) 441.
Although the terms of reference appear to contemplate hearing some matters in closed proceedings, it is to be hoped that the inquiry is sufficiently deep and wide to air all matters of legitimate concern and bring the whole sordid affair into public view.
Marriage and Civil Partnerships (Minimum Age) Bill
Recent posts on the Law & Religion UK blog have discussed the Marriage and Civil Partnership (Minimum Age) Bill, “a Bill to make provision about the minimum age for marriage and civil partnership; and for connected purposes”, which was given a unanimous Second Reading in the Commons on Friday 19 November after 90 minutes of debate. It is a private Member’s ballot bill, now sponsored by Pauline Latham (Conservative) but originally presented by Sajid Javid on 16 June. (Law and religion round-up — 21st November). A separate post by David Pocklington discusses the bill in more detail: Raising the minimum age for marriage and civil partnership in England and Wales.
The roundup’s author Frank Cranmer commented soon after the Bill’s initial presentation (Law and religion round-up — 27th June):
“The obvious question is this: if the legal age for marriage in England & Wales is raised to 18, will marriages of 16- and 17-year-olds in Scotland and Northern Ireland continue to be recognised as valid in England & Wales? (We forbear from speculating about the possibility of 16- and 17-year-olds eloping to Gretna Green.)”
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
COSTS — Discretion of court — Contempt of court: National Highways Ltd v Heyatawin, 18 Nov 2021  EWHC 3093 (QB);  WLR(D) 586, DC
ENVIRONMENT — Natural habitats — Conservation of wild fauna and flora: Roblyn v Director of Public Prosecutions, 16 Nov 2021  EWHC 3055 (Admin);  WLR(D) 578, DC
EXTRADITION — European arrest warrant — Validity: SN v Governor of Cloverhill Prison, 16 Nov 2021 (Case C-479/21PPU); (Case C-479/21 PPU); EU:C:2021:929;  WLR(D) 580, ECJ
EVIDENCE — Documents — Copies: Promontoria (Oak) Ltd v Emanuel, 18 Nov 2021  EWCA Civ 1682;  WLR(D) 587, CA
NEGLIGENCE — Contributory negligence — Apportionment; ROAD TRAFFIC — Negligence — Contributory negligence: Campbell v Advantage Insurance Co Ltd, 15 Nov 2021  EWCA Civ 1698;  WLR(D) 579, CA
POLICE — Pension — Injury pension: R (Chief Constable of South Yorkshire Police) v Crown Court at Sheffield, 19 Nov 2021  EWCA Civ 1699;  WLR(D) 582, CA
PRACTICE — Case management orders — Payment of trial fee: Boodia v Yatsyna, 17 Nov 2021  EWCA Civ 1705;  WLR(D) 581, CA
SHIPPING — Charterparty — Demurrage: K Line Pte Ltd v Priminds Shipping (HK) Co Ltd (The Eternal Bliss), 18 Nov 2021  EWCA Civ 1712;  WLR(D) 588, CA
TRUSTS — Express trust — Cryptocurrency: Wang v Darby, 17 Nov 2021  EWHC 3054 (Comm);  WLR(D) 585, QBD
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
UK Supreme Court Blog: Case Comment: Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait)  UKSC 48, SC(E)
NIPC Law: Disclosure — Anan Kasei Co Ltd v Neo Chemicals & Oxides (Europe) Ltd EWHC 1972 (Pat), Ch D
UK Human Rights Blog: Detention of a minor for his own protection — round two: Archer v Comr of Police of the Metropolis  EWCA Civ 1662, CA
Inforrm's blog: Case Law: Parkes v Hall, Should litigants in person get less leeway in libel cases? Parkes v Hall & Ors  EWHC 2824 (QB), QBD
Open Justice Court of Protection Project: “Burdensome and futile” treatment and dignity compromised: Poor practice at a leading UK hospital: North West London Clinical Commissioning Group v GU  EWCOP 59, Ct of Protection
Panopticon blog: It’s not all about the Supreme Court: don’t forget the little people: Johnson v Eastlight Community Homes Ltd  EWHC 3069 (QB), QBD
RPC Perspectives: Clutching at draws — whose moral rights are they anyway?: The Front Door (UK) Ltd (trading as Richard Reid Associates) v The Lower Mill Estate Ltd  EWHC 2324 (TCC), QBD
Other recent publications
The Great Post Office Scandal
Review by Joshua Rozenberg on A Lawyer Writes of the book by Nick Wallis about the prosecution, conviction and imprisonment of many entirely honest and demonstrably innocent sub-postmasters thanks to failures of an information technology system which were covered up by the Post Office and the IT company Fujitsu, all of which is now the subject of a public inquiry chaired by Sir Wyn Williams. The book, says Rozenberg, is “a real page-turner, combining tragic personal stories, a strong narrative, courtroom drama and clear explanations of both computerised accounting systems and complex legal processes”.
How we came to publish The Great Post Office Scandal — and why we did
David Chaplin, of Bath Publishing, explains how and why they became publishers of The Great Post Office Scandal — arising out of a remote panel discussion last year in which Louise Tickle invited author Nick Wallis to discuss reporting in courts.
More transparency in the financial remedies court
In a guest post on the Transparency Project blog, Sir James Munby, former President of the Family Division, discusses the recent push towards greater transparency in the family courts, as it relates to two recent judgments of Mostyn J.
Friday Fear: Dealing with a difficult judge
Post on the It’s A Lawyer’s Life blog discussing judicial bullying, and advice on how to deal with it, using body language, staying calm, etc. And recognising the signs. “But there is a difference between a judge who, under tremendous pressure of work snaps occasionally and a judge who makes a habit of picking on an advocate or regularly goes through a routine of rude behaviour.”
The open-source investigators trying to bring justice to Myanmar
Article in the Financial Times magazine about the growing community of investigators combing through the internet and social media to collect and document images and other evidence of atrocities committed by the military regime, with a view to supporting future crimes-against-humanity prosecutions.
Pictures of Parliament don’t tell the whole story
Article by Full Fact explaining how images on social media of parliamentary debates showing either lots of MPs or hardly any, with bogus references to the matter being debated, are often used to mislead. The typical claim (the fake news) is that “The House of Commons was crowded for debates on MP expenses and pay, but much emptier for debates and votes on topics such as education for refugees and knife crime.”
A small leak will sink a great ship: the need to counter fraud and error in government
Post by Katie Dixon on the National Audit Office blog about tackling fraud against the public purse. She notes that “leaky taps cost UK householders an estimated £3 million every year” and something similar, but at far greater scale, affects the flow of money through government:
“Government estimates that £26.8 billion a year is lost to fraud and error in the tax and welfare system, but for me, the most surprising thing is that GCFF estimate that up to £25 billion a year more is lost through fraud and error in other areas of government spending. The measurement data available suggests that most departments are losing a relatively small amount to fraud and error every year, but these hundreds of small leaks add up to an eye watering cost to the taxpayer.”
Dates and Deadlines
Great Legal Quiz
Ye Olde Cock Tavern (Fleet Street, Holborn, London)— 6.30 for 7 pm; 30 November 2021
London Legal Support Trust (LLST) are hosting their Great Legal Quiz at on Tuesday 30 November. This evening of friendly competition with local firms, chambers and agencies sells out fast, so book your tickets today to avoid disappointment! Doors open at 6:30pm, ready for a 7pm start.
Tickets are £40 for a table of 5. Buy tickets HERE
Tweet of the week
is from The Onion, allegedly satirising the prejudices engaged in commenting on a case without properly hearing all the evidence, possibly, or possibly not. (Or maybe sometimes a gavel is just not enough.)
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.