Weekly Notes: legal news from ICLR — 24 June 2019

This week’s roundup includes arms and the salesman, liability for negligent cycling, developments in the courts, reports on discrimination and the use of algorithms in criminal justice, a prize for journalism and a walk to raise funds for access to justice.

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Photo by Somchai Kongkamsri from Pexels

Public law

Arms export licences suspended after successful court challenge

As in the High Court, the Court of Appeal heard both open and closed evidence as to the issues involved, before giving a judgment in open court. (There is also a closed judgment, which presumably will be lodged in accordance with recent Practice Direction on Closed Judgments [2019] 1 WLR 1351.)

The nub of the decision was that the secretary of state had failed to make a systematic assessment of past violations of international humanitarian law by the coalition taking part in military operations in Yemen, and Saudi Arabia in particular, in relation to the assessment of future risk of violation which he was required to make when deciding whether to grant the licences.

Under article 2.2 of EU Council Common Position 2008/944/CFSP defining common rules adopted by member states governing control of exports of military technology and equipment, an exporting state is required to assess the recipient state’s attitudes towards human rights, fundamental freedoms and international humanitarian law, exercise special caution where serious violations of human rights have been established by competent bodies and deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law. Acting pursuant to section 9 of the Export Control Act 2002, the secretary of state set out guidance in a written statement to Parliament, criterion 2 of which was in similar terms to article 2.2 of Common Position 2008/944. The judgment records, at para 11:

“CAAT submits that there is a large body of evidence which demonstrates overwhelmingly that Saudi Arabia has committed repeated and serious breaches of international humanitarian law (“IHL”) during the conflict in Yemen. CAAT claims, in particular, that Saudi Arabia has committed indiscriminate or deliberate airstrikes against civilians, including airstrikes which have used ‘cluster’ munitions, and which have targeted schools and medical facilities. CAAT’s evidence runs to many hundreds of pages, and includes reports from the UN, the European Parliament, the Council of the EU, the International Committee of the Red Cross, Médecins Sans Frontières, Amnesty International, Human Rights Watch, Parliamentary committees, and the press.”

It was this kind of evidence, inter alia, which the secretary of state was required to consider in accordance with criterion 2, but which the court found he failed to do. The result is that the decision will be remitted to the secretary of state for reconsideration in accordance with the correct legal approach (paras 132–145, 167). Having done so, he may very well come to the same conclusion as he did before, in which case any suspension of the export licence will only be temporary, and business as usual (or indeed business as lethal) will resume. Besides which, as this information from AFP news agency demonstrates, Britain is by no means the only pedlar of arms to Saudi Arabia, or indeed other regimes with questionable human rights records.

Road Traffic

Cyclist’s liability for injury to pedestrian

“Even where a motorist or cyclist had the right of way, pedestrians who are established on the road have right of way. Mr Hazeldean did fall below the level to be expected of a reasonably competent cyclist in that he did proceed when the road was not completely clear.”

See The Guardian, Woman knocked down while on phone wins payout from cyclist.

Although the claimant was found contributorily negligent to the extent of 50%, she was awarded damages and costs, whereas the defendant, who did not counterclaim in respect of his own injuries, is expected to pay her costs. According the Law Society Gazette,

In a statement issued through his representatives Levi Solicitors, [the defendant] stated that covering the costs and compensation will personally cost him £20,000 and will leave him bankrupt. Levi Solicitors says the claimant has sought almost £100,000 in costs, a figure which will be contested at a future hearing as an abuse of process.*

Emma Farrell, head of the personal injury team at the national firm, said Hazeldean’s costs would have been limited to around £7,000 if he had been insured. If he had sought legal advice earlier, the firm says it would also have advised him to counterclaim, given he has been left with permanent scarring, and ensure he was protected against a large costs order.

Newspaper reports suggesting that the defendant “has been ordered” to pay £100,000 including costs are perhaps overstating the actuality. (See, for example, Metro, Cyclist who collided with pedestrian on phone faces legal bill of £100,000). It looks as though the figure will actually be rather smaller. Nevertheless, to the casual onlooker it may seem rather unfair that someone found to have been equally liable for the collision should nevertheless be able to claim all her costs simply because the other party did not aggressively counterclaim as a procedural device to protect his position on costs. He disdained to do so because, he says, “I do not advocate the claim culture.”

What it shows, though, is the need for cyclists (perhaps even pedestrians) to have some form of insurance, including BTE legal insurance, and to take legal advice the minute a claim looks likely. In this case, it seems a fundraiser has now been launched to help the defendant cyclist pay his costs — a process that might be described as ATE crowdfunding. But you can’t rely on being bailed out after the event. As a well known shipping lawyer (who is also a keen cyclist) points out, the case is a cautionary tale for cyclists:

Claims for damages for injuries sustained in cycling accidents frequently involve contributory negligence — as much if not more often on the part of a cyclist hit by another vehicle, as in respect of a pedestrian hit by a cyclist. See, for example, Cycle Law, Cycling Distractions and Contributory Negligence and Penningtons Manches, Cycling claims — recent case law on contributory negligence.

Apart from civil claims for damages, an accident between a cyclist and a pedestrian can result in a criminal conviction, as the somewhat more extreme case of Charlie Alliston in 2017 demonstrated. In that case, the pedestrian died after being hit by a cyclist who had disabled his front brakes. Alliston received an 18-month jail sentence after being found guilty of causing bodily harm by “wanton and furious driving” at a trial before a jury at the Old Bailey in London, though he was cleared of manslaughter. See Guardian, Cyclist Charlie Alliston jailed for 18 months over death of pedestrian.

Discrimination

EHRC inquiry report

“Claims concerning discrimination in the workplace must be brought in the Employment Tribunal, but the introduction of tribunal fees in 2013 led to a drop of around 70% in the number of claims. The fees were abolished in 2017, after the Supreme Court held that they were unlawful because they prevented access to justice [see R (Unison) v Lord Chancellor [2017] UKSC 51; [2017] 3 WLR 409; [2017] ICR 1037] , but the number of claims has not recovered to pre-2013 levels. And while legal aid is available for advice and representation in certain types of discrimination case, it does not cover representation in the Employment Tribunal. This means that individuals must either pay privately for representation or represent themselves, often against an opponent with more resources and professional legal representation. This ‘inequality of arms’ is particularly stark when cases are factually and legally complex, which is often true of discrimination claims.

Even where legal aid is available, it is subject to strict financial eligibility requirements, the thresholds for which have not been updated since 2010. Moreover, the protection introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) of claimants from paying the costs of losing against much better funded defendants does not apply to discrimination claims, introducing another barrier to access to justice.

Though the government has adopted some of the commission’s proposals in its review of LASPO, there remains concern over the barriers in the way of victims of discrimination needing legal aid for advice and representation to enforce their rights in the courts. The report makes a number of recommendations as to how the situation can be improved.

Courts

Extended hours pilot starts

Most courts sit between 10am to 4pm, but under the pilots there will be late sittings (4:30pm to 7pm) involving both civil and family work at Manchester Civil Justice Centre and early (8am to 10:30am) and late sittings involving civil work only at the County Court at Brentford.

The plans were originally revealed by HMCTS last November in a Prospectus for Civil and Family Court Pilots. As we reported at the time, in Weekly Notes, 19 November 2018, earlier attempts by HMCTS to trial flexible operating hours in the court had to be suspended following a consultation and review. Any attempt to trial them in criminal courts has been suspended indefinitely. HMCTS have assured court users that

Any decisions about using Flexible Operating Hours in the future will only be made following robust assessment of evidence and data gathered through these pilots and a comprehensive, independent evaluation of the impacts, costs and benefits across the justice system.

Family law

Financial Remedies Courts rollout

It is early days, but the project has been greeted enthusiastically by financial remedies practitioners and presents many exciting opportunities for the efficient and effective delivery by the court system of this area of work, which is so important to individuals who wish to resolve the financial aspects of their relationship breakdown in a way which is as painless as possible, both in terms of its financial and emotional costs.

My aim in taking the Financial Remedies Court project forward is to ensure that cases are dealt with by ticketed judges who have a knowledge and experience of financial remedies work. It is important that cases are properly allocated from the outset to the right level of judge in the right place and allocation procedures are in place in all zones.

Mostyn J was appointed lead judge of the project, with Judge Hess as his deputy, when it was first announced by the then President of the Family Division, Sir James Munby, back in December 2017. His successor, Sir Andrew McFarlane, reported that he had given the “green light” to the extension of the project in November 2018.

Crime

Use of algorithms in criminal justice

“Facial recognition systems, DNA profiling, predictive crime mapping, and mobile phone data extraction, are all examples of algorithmic systems currently in use in the criminal justice system.”

So states a report issued by the Law Society earlier this month, on Algorithms in the criminal justice system. The report is the work of the Technology and Law Public Policy Commission, which was created to explore the role of, and concerns about, the use of algorithms in the justice system. The report summary warns that

“ The use of biased or oversimplified data can lead to discriminatory decisions, shallow understandings of complex issues and a lack of long-term analysis. …

An uncritical and unexplained use of algorithms has serious implications for fundamental human rights and the integrity of the justice system. Within the right framework, however, algorithmic systems can deliver a range of benefits, such as efficiency, efficacy, auditability, and consistency.”

It recommends a number of protections:

  • Oversight — A range of new mechanisms and institutional arrangements should be created and enhanced to improve oversight of algorithms in the criminal justice system.
  • Strengthening Algorithmic Protections in Data Protection — The protections concerning algorithmic systems in Part 3 of the Data Protection Act 2018 should be clarified and strengthened.
  • Protection beyond Data Protection — Existing regulations concerning fairness and transparency of activities in the justice sector should be strengthened in relation to algorithmic systems.
  • Procurement — Algorithmic systems in the criminal justice system must allow for maximal control, amendment and public-facing transparency, and be tested and monitored for relevant human rights considerations.
  • Lawfulness — The lawful basis of all algorithmic systems in the criminal justice system must be clear and explicitly declared in advance.
  • Analytical Capacity and Capability — Significant investment must be carried out to support the ability of public bodies to understand the appropriateness of algorithmic systems and, where appropriate, how to deploy them responsibly.

Journalism

Emily Dugan wins award for her coverage of legal aid crisis

*see Weekly Notes, 14 January 2019 under “Legal Aid”.

ICLR news

Team ICLR walked the walk!

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Team ICLR on the Legal Walk — supporting access to justice and advice

This year’s London Legal Walk took place on 17 June. Along with the Lord Chief Justice, the President of the Supreme Court and a record-breaking 15,000 other lawyers we walked 10km to raise funds for the London Legal Support Trust which funds Law Centres and pro bono agencies in and around London. We know that these agencies do a fantastic job in preventing homelessness, resolving debt problems, gaining care for the elderly and fighting exploitation.

Our team was: Georgina Orde, Nicky Sears, Sarah Parker, Tom Barnes, Sadie Thomson-Ashworth and David Cosway. There was a festive atmosphere in Carey Street where the walk began and ended.

Do please contribute via our fundraising page.

And finally…

Tweet of the week

That’s it for this week. Thanks for reading. Watch this space for updates.

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.

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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