Weekly Notes: legal news from ICLR, 24 February 2020
This week is Justice Week and our roundup of legal news and commentary includes a marriage that never was, an arrest warrant that might disappear, and what should and shouldn’t be happening in court.
Justice Week — 24 to 28 February 2020
This week is Justice Week, whose aim is “to improve access to justice by boosting the profile of justice and the rule of law, placing them at the centre stage of public and political debate”. This comes at a time when the judiciary are under threat from politicians, legal aid funding is scarce and inadequate, and courts are undergoing a process of reform during which the real ones are being closed and the virtual ones simply don’t work well enough to replace them. Otherwise, of course, everything’s fine.
The Law Society is hosting and promoting a number of events, exhibitions, discussions and publications around the country each day this week, via their Justice Week page.
Many of the events are devoted to public legal education and awareness raising. The Bar Council is publishing The Justice Papers, a series of papers from different authors on key legal issues, each falling into one of the key themes of Justice Week, which are:
- Monday — Protecting our Freedom
- Tuesday — Fighting for Rights
- Wednesday — Defending Democracy
- Thursday — Saving our Planet
- Friday — Justice Week: the best bits.
On Friday afternoon, the young people who have been participating in City University Law School’s Legal Design Sprint will be demonstrating the ideas they have been developing during this month, with prizes being awarded for the winning teams. This is one of the most interesting projects for getting young people interested in law, and last summer’s sprint, organised by Emily Allbon and Emily McLoud, with assistance from a number of others including ICLR’s Daniel Hoadley, was a great success.
A marriage too invalid even to be annulled
The case of Akhter v Khan (Attorney General intervening)  EWCA Civ 122;  WLR(D) 95, depending on how you look at it, has either caused or resolved a certain amount of confusion over religious weddings that don’t conform to the civil formalities for a marriage.
In the court below, Mr Justice Williams  EWFC 54;  Fam 247 held that the Islamic marriage ceremony (“Nikah”) through which the petitioner, Nasreen Akhter, and the respondent, Mohammed Shabaz Khan, had gone in 1998 did not create a valid English marriage. Nevertheless, by adopting a holistic and purposive construction, and taking into account their human rights and the interests of the couple’s four children, he was able to find that the marriage came within the scope of section 11 of the Matrimonial Causes Act 1973 as a marriage entered into “in disregard of certain requirements as to the formation of marriage”. The petitioner was therefore entitled to a decree of nullity. That enabled her to rely on other provisions of the 1973 Act to claim financial remedies after their separation. (There is a helpful case explainer on the Transparency Project blog, Void, Valid and Very Confusing — what is the status of Sharia Marriages in the UK?)
The Court of Appeal have now reversed that decision. Sir Terence Etherton MR, Lady Justice King and Lord Justice Moylan unanimously decided, first, that there can be ceremonies — which the court calls “non-qualifying ceremonies” — that do not create a marriage, or even a void marriage, under English law and so do not entitle a party to a decree of nullity or financial remedies. The Court did not accept that the Human Rights Convention led to a different conclusion or supported a flexible approach to the interpretation of section 11 of the 1973 Act, or that the interests of the children had any bearing on the matter.
The Nikah ceremony which the parties had undergone in 1998 did not create a void marriage because it was a non-qualifying ceremony. They were not marrying “under the provisions” of English law (Part II of the Marriage Act 1949). The ceremony was not performed in a registered building. Moreover, no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorised person was present at the ceremony. Further, the parties knew that the ceremony had no legal effect and that they would need to undertake another ceremony that did comply with the relevant requirements in order to be validly married. Their intention of doing so at some point in the future did not affect the reality of what happened. In the circumstances, there had been no ceremony in respect of which a decree of nullity could be granted pursuant to section 11 of the 1973 Act.
It seems that the problem in this case is not an isolated one, which is why there were a number of interveners in the appeal (interested non-parties putting forward legal arguments) including Southall Black Sisters. They issued a press release explaining their view of the case:
“This case has profoundly discriminatory consequences for minority women, especially Muslim women.”
“By rejecting Mr Justice William’s decision, the Court of Appeal has gone backwards; in the ‘interests of the state’it has endorsed a conservative, discriminatory and fossilised system of marriage registration at the expense of the human rights of minority women to access equality and justice. It leaves minority women exposed to deception by abusive husbands who want to avoid their rights and obligations in marriage and after a break-up.”
Some time ago the problem was the subject of a Channel 4 documentary, The Truth About Muslim Marriage, which reported on a survey of 900 women who had been through a Nikah, or traditional Muslim wedding, but had not had a civil ceremony or registration under the Marriage Act 1949. Aina Khan, a family lawyer and specialist in Islamic law, founded the Register Our Marriage campaign with a petition to change the law. This is mentioned in a recent House of Commons Library Briefing on Islamic marriage and divorce in England and Wales
You can read our law reporter’s WLR Daily case summary of the case here:  WLR(D) 95. This content, like the judgment transcripts on our database, is free for anyone to look at. No subscription is required. (You can also read our reporter’s case summary of the decision of the judge below, here  WLR (D) 526.)
European Arrest Warrant
Though he is currently facing well publicised and noisily opposed proceedings for his extradition to the United States, Julian Assange was originally arrested (before he absconded bail) under the European Arrest Warrant, at the request of Sweden, nearly a decade ago. The EAW is fast track extradition procedure between EU Member States, which the UK has been using since 2004. But now that the UK is leaving the EU, what will become of the EAW?
Last week the House of Commons Library issued a briefing entitled Brexit next steps: The European Arrest Warrant which helps explain what might happen. Under the Withdrawal Agreement (WA) the UK will continue to participate in the arrangement until the end of the transition period. After that, new arrangements for criminal justice cooperation including extradition, will need to come into effect. These new arrangements will need to have been negotiated during the transition period, alongside the trade negotiations and other matters in relation to which the respective parties are currently setting out their initial positions and “red lines” and so forth.
What if no deal is reached?
“If no new agreement is reached the UK will fall back on previous arrangements. These are contained in a 1957 Council of Europe Convention on Extradition. This will require amendments to domestic legislation. The UK will also be reliant on other Member States making equivalent amendments because some have repealed legislation that gave effect to the Convention since the EAW.
Unlike the EAW, the Convention does not impose time limits and requests are made through diplomatic rather than judicial channels. There are also more grounds on which extradition can be refused than under the EAW.”
New guidance issued to public
HM Courts and Tribunals Service (HMCTS) have updated guidance to the public on attending court. What to expect coming to a court or tribunal explains “what you should bring for a court or tribunal hearing, how you can get support, and what to expect on the day”.
The guidance explains certain basic points about court procedure and etiquette, which is useful as most people get their ideas about this from watching Americanised TV series in which witnesses testify by taking the stand, counsellors pace up and down in front of the jury while their opponents shout “objection” and then the judge bangs a gavel to keep order. Well, it’s not like that here, as you know. But we still say “all rise”:
“You must stand up when a member of staff calls ‘all rise’. This means the judge or magistrate is about to come in to the room. They will also tell you when you can sit down again. …
You may see some people bow to the judge or magistrate when they walk in or out of the hearing room. You don’t have to do this, but you can if you want to.
When you speak to the judge or magistrate, be polite and speak clearly. There are lots of different names for judges. It’s okay to call them ‘sir’ or ‘madam’. …
When you go into the hearing room someone will explain who will speak and when. You will be given time to ask any questions that you have and give evidence in your case. If you have a solicitor or barrister, they will ask questions for you.
You can take notes, but you must not take photos or videos.”
Some of the advice appears to conflict with the recent experience of lawyers, on Twitter, about bringing things into the building. For example, it says “You can bring your own food and drink into the waiting area” but there have been reports of water bottles being confiscated. The advice does point out that “There are items you cannot bring (such as sharp objects, or liquids other than drinks)” and that has resulted in some people not being able to bring in medical necessities and toiletries.
Open justice denied
Last week a journalist from the Law Society Gazette was excluded from the court building by security staff who appeared to know nothing about the principle of open justice.
Such incidents, flagged up on Twitter, are usually swiftly responded to by the CEO of HMCTS, who assures us that training will be provided, but this and other security related problems, or problems such as not allowing reporters to use their notebook in court, crop up with depressing regularity. HMCTS have even issued a series of guides for court staff on dealing with reporters and what help the media can expect in court, but this hasn’t quite solved the problem.
Fully video hearings by default
Meanwhile, progress is being made on the brave new world of virtual or fully video hearings, after a year-long pilot in Manchester and Birmingham has been declared a success, according to Legal Futures.
The pilot for applications to set aside default judgments is now to become opt-out rather than opt-in, the Civil Procedure Rule Committee has decided. An update to the Civil Procedure Rules provides that the pilot, which ended on 30 November 2019, would recommence on 2 March and run till 30 November 2020. According to Legal Futures,
“The parties or their legal representatives attend the hearing of the application from suitable IT equipment and see and hear, and are seen and heard by, each other and the judge.
Hearings are held in public by members of the public attending the court in person, where they can watch the judge and the parties or lawyers on a screen set up in the courtroom.”
This last point would seem to deal with the open justice objection that might otherwise be raised; but of course it does rather depend on reporters not being locked out of the court (see above).
Other fully video pilots have dealt with tax cases in the First-Tier Tribunal and short-notice applications and first direction appointments in the family court.
Some recent reads
Giles Peaker, via Nearly Legal, Conceptualising damages for housing conditions — they don’t add up discusses “how we (and the courts) have approached quantum for general damages in disrepair and how we (and the courts) could approach housing conditions claims” with reference to a number of cases.
Julie Doughty, via Transparency Project, Another Re W — a successful appeal against refusal for leave to oppose an adoption explains an unusual (because rare) case in which the Court of Appeal gave birth parents leave to oppose an adoption order re 3-yr old child. They still face a “very high bar” to succeed in the actual hearing.
Lucy Reed, also via Transparency Project, A day in the life of a district judge describes a typical day in a family court dealing with a mix of cases and gathers some learning points about the role of a legal blogger under the current pilot scheme (set up by FPR PD36J).
Paul Magrath, of ICLR, has also written a post on the Transparency Project blog about the recent case in which the family court had to consider whether to allow a hospital to withdraw mechanical ventilation from a baby, who had been starved of oxygen during his birth and had been declared brain-stem dead by doctors, despite the objections of the baby’s parents: see “Brain dead” baby — Court of Appeal confirms High Court’s decision to allow “dignity in death”
Graham Smith, via Inforrm’s Online Harms Deconstructed: the Initial Consultation Response comments on the government’s Initial Response to the Online Harms White Paper Consultation, which we covered previously in Weekly Notes, 17 February 2020.
ICLR is recruiting more law reporters. If you think the job might interest you, check out our Careers page. The deadline for the current round of applications is 1 March 2020.
Great Legal Bake
We are pleased to report that ICLR staff raised over a hundred pounds by baking and then eating a selection of cup cakes, brownies, bar bakes and scones during the Great Legal Bake earlier this month (12 to 14 February). The donation page is still open if anyone would like to top it up. The next challenge will be the Legal Walk in the summer.
Dates and Deadlines
Academy NW seminar: “Probation — in crisis or on the road to recovery?”
Manchester Metropolitan University — Tuesday, 19 May 2020
In this seminar organised by the Academy for Social Justice, Justin Russell, Chief Inspector of Her Majesty’s Inspectorate of Probation, will be giving an overview of early findings from HMI Probation’s second round of annual inspections against a new set of quality standards and what that may tell us about probation performance and its direction of travel after the impacts of Transforming Rehabilitation. He will also discuss the priorities for probation reform indicated by their recent thematic inspections.
Please note you must be a member of the Academy to attend an event. Membership and services are free and you can join when booking your place on Eventbrite
Bloomsbury Professional Family Law Conference
De Vere Holborn Bars, London — 23 June 2020
This third annual conference, chaired by Judge Reardon, with a keynote speech by Judge Hess, will be split into two sessions covering Children Law in the morning and Current Issues in Family Law in the afternoon. Presented by leaders in these fields, topics will cover Modern Families, Child Abduction, Tax Matters in Divorce and Brexit and Related International Family Law to name a few.
Attendees will gain 7 CPD hours on the latest thinking from the experts driving development in these areas. Booking for Earlybird tickets expires 27th March 2020. Book online or call on 01444 416119.
Tweet of the week
Comes from law professor Ellie Margolis on the subject of legal type style:
That’s it for this week. 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.