Weekly Notes: legal news from ICLR, 24 May 2021

We end the legal term with a roundup covering a range of institutional failures concerning the BBC, the Home Office, the Police, and the Post Office. Looks like they’re all going to need to pull their socks up and try a bit harder next term.

15 min readMay 25, 2021

Media and communications

Dyson investigation report

Lord Dyson, former Supreme Court Justice (and a former member of the Council of ICLR) was asked to investigate the background to the “sensational” interview by Martin Bashir of HRH Diana, Princess of Wales that was aired on 20 November 1995, and in particular the way faked bank statements purporting to show payments by Penfolds Consultants and News International into the bank account of Alan Waller, a former employee of Earl Spencer, Princess Diana’s brother, were used to induce her consent to the interview.

Lord Dyson’s Report has provoked a good deal of news coverage and comment, much of it adverse to the BBC and its culture of smug self-rectitude. It finds that an earlier BBC investigation conducted in 1996 by Lord (then Tony) Hall (BBC Managing Director of News and Current Affairs at the time) and Mrs Anne Sloman (Managing Director of Weekly Programmes) was “woefully ineffective” and that “the BBC fell short of the high standards of integrity and transparency which are its hallmark”.

Dame Melanie Dawes, chief executive of the broadcasting regulator Ofcom, commented:

“Lord Dyson’s findings are clearly of great concern and raise important questions about the BBC’s transparency and accountability. As the BBC’s independent regulator, Ofcom is considering the report, and will be discussing with the BBC what further actions may be needed to ensure that this situation can never be repeated.”

For more on this, see:

Press Gazette, Lord Dyson condemns ‘woeful’ BBC response and cover-up after Bashir faked Diana bank statements
Guardian: A cover-up’: what the Dyson report said about the BBC and Martin Bashir
David Allen Green, Law and Policy Blog: The Crown and the Media — from phone hacking to the Dyson report (drawing parallels and comparison with the dishonest conduct of the tabloid press and phone-hacking scandal that led eventually to the Leveson Inquiry)
Hacked Off: Reflections on the Dyson Report: lessons for the press
Steven Barnett, via Inforrm’s Blog: Public broadcasting: does the UK’s regulator have the public interest at heart? (looking at the wider issue of broadcasting regulation)

Immigration

Windrush investigation

The National Audit Office (NAO) has published the Report of its Investigation into the Windrush Compensation Scheme (HC 65). It finds that prior to changes it made in December 2020, the Home Office was not meeting its objective of compensating claimants quickly, but that since then, it has made “some progress” in improving its response. However it

“needs to sustain its efforts to improve its caseworking operations and management systems to ensure it fairly compensates members of the Windrush generation in acknowledgement of the suffering it has caused them.”

The scheme was launched in April 2019 and aimed to compensate members of the Windrush generation of immigrants and their families for the losses and impacts they have suffered, as victims of the Home Office’s “hostile environment” policy, due to their not being able to demonstrate their lawful immigration status. The Home Office acknowledged it had treated the Windrush generation unfairly and announced a set of measures to “right the wrongs” experienced by those affected. The NAO investigation covered the Home Office’s establishment and administration of the scheme and the progress it has made in implementing changes from December 2020 following earlier criticism from Parliament and the media.

By the end of March 2021, the report finds, the Home Office had paid £14.3 million in compensation, of which £11.6 million has been paid since December 2020. Nearly 60% of the payments since December relate to paying increased ‘impact on life’ awards to those previously paid and making preliminary payments, rather than finalising more claims.

Although the Home Office has spent £773,000 on “engagement and marketing activity” to promote the Windrush schemes, it continues to receive feedback reporting distrust from victims. It has allocated a further £500,000 for a Windrush Community Fund set up in December 2020 to help raise awareness of the Windrush schemes. When it launched the scheme in April 2019, it estimated it might pay out compensation worth between £120 million and £310 million to 15,000 people. Yet by March this year it had still only received 19% of the claims it estimated it might receive as part of the scheme. To the end of March 2021, it had paid £14.3 million to 633 people, although some of these people may receive further payments.

Between April 2019 and March 2021, the Department had a budget of £15.8 million to run the scheme and spent £8.1 million, of which £6.3 million has been spent on staff. It takes, on average, 154 staff hours to process a case through to payment approval, considerably longer than the Department estimated. Moreover, its quality assurance processes are not identifying all errors. It has reduced the standard of proof required for some categories of claim to ensure claimants receive the maximum compensation owed to them. It is now undertaking a review of how evidential standards are applied in decision-making, claim forms, guidance and training, in the hopes of improving performance and resolving cases more quickly.

Police

Daniel Morgan murder investigation

Daniel Morgan was a private detective who was brutally murdered in a pub car park in South East London back in 1987. Over the ensuing three and a bit decades it has become the most examined murder in British history, with five failed police investigations and, most recently, an independent panel inquiry. Although suspects have been pointed at and motives discussed, the mystery remains unsolved. There have been trials, but they have collapsed, and no definitive verdicts have been arrived at. The whole story was the subject of a gripping podcast Untold: The Daniel Morgan Murder.

The independent panel inquiry was established eight years ago, in order to investigate “the incidence of connections between private investigators, police officers and journalists at the former News of the World and other parts of the media, and alleged corruption involved in the linkages between them.” Last week it was about to make its findings public at last, when suddenly the Home Secretary, Priti Patel, intervened to prevent publication pending a review — apparently in order to “ensure that the report complies with human rights and national security considerations”.

The panel has complained that this intervention will compromise its independence, which was central to its terms of reference when first established by then Home Secretary Theresa May in 2013. In a statement issued on the panel’s own website, it said:

“A review of this nature has not been raised previously in the eight years since the Panel was established in 2013. The Panel believes that this last-minute requirement is unnecessary and is not consistent with the Panel’s independence.”

Morgan’s brother Alastair, who has waged a 34-year long justice campaign, attacked the home secretary’s intervention as “shameful” and told the Guardian the panel should consider court action to protect the independence of its report. Morgan told the Guardian: “They have known the terms of reference for the best part of a decade. I think it is shameful, but typical. The panel should consider going to the high court.”

If and when it is published, says David Allen Green, The Daniel Morgan panel report will be the nearest we ever get to Leveson Part II

The Leveson Inquiry, which published its initial report in 2012, recommending more effective press regulation, was to have proceeded to a second phase, investigating the murky relationship between the press and the police. But successive Secretaries of State for Digital, Culture, Media and Sport have been reluctant to upset the sometimes rather somnolent critical faculties of the press as the government lurches from crisis to crisis, Brexit to Covid to who knows what, and further investigation, having been repeatedly shelved, was explicitly blocked under the 2019 Conservative party manifesto on which the present government was elected.

Crime

Post Office scandal

Having initially resisted public demands for it, business minister Paul Scully MP last week announced a full statutory inquiry into the sub-postmaster scandal, according to the Law Society Gazette. The scope and powers of the existing inquiry, chaired by Sir Wyn Williams, will now be expanded, so that the inquiry will not just deal with the failings associated with Post Office Ltd’s Horizon IT system, but also the findings of Mr Justice Fraser in civil litigation brought by a group of sub-postmasters, Bates v Post Office Ltd (No 6: Horizon Issues) [2019] EWHC 3408 (QB), and the recent Court of Appeal judgment Hamilton v Post Office Ltd [2021] EWCA Crim 577, which quashed the convictions of 39 former sub-postmasters. (We have covered these cases extensively in our Weekly Notes, 26 April 2021, as well as on other occasions.) Announcing the statutory inquiry in parliament (Hansard, 19 May 2021), Scully said:

“The horizon saga has wrecked lives and livelihoods — we cannot undo the damage that has been done but we can establish what went wrong at the Post Office and ensure something like this is never allowed to happen again.”

The full public inquiry may include an investigation of the role played by Post Office lawyers in possible failures to disclose important evidence discrediting the accuracy of the Horizon system, according to the UK Human Rights Blog. The Solicitors Regulation Authority had already confirmed last month that it was monitoring the case, after the judgment levelled criticism at a culture among the prosecution counsel of “seeking to avoid legal obligations when fulfilment of those obligations would be inconvenient and/or costly.”

For more up to date information on this case, you really need to follow the blog Post Office Trial, written by Nick Wallis, the reporter who has been onto this story from the start and is writing a book about it.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.3:

CHILDREN — Care order — Application to discharge: In re TT (Children: Discharge of Care Order), 20 May 2021 [2021] EWCA Civ 742; [2021] WLR(D) 298, CA

CRIME — Evidence — Expert evidence: R v Brecani, 19 May 2021 [2021] EWCA Crim 731; [2021] WLR(D) 293, CA

ESTOPPEL — Per rem judicatam — Issue estoppel: Thomas v Luv One Luv All Promotions Ltd, 20 May 2021 [2021] EWCA Civ 732; [2021] WLR(D) 296, CA

NATIONALITY — British citizenship — Deprivation: Laci v Secretary of State for the Home Department, 20 May 2021 [2021] EWCA Civ 769; [2021] WLR(D) 297, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.3 includes:

Law & Religion UK: Refusal to register a religious community: Bulgarian Orthodox Old Calendar Church: Bulgarian Orthodox Old Calendar Church and Others v Bulgaria (Application no. 56751/13); [2021] ECHR 340, ECtHR

Nearly Legal: A Sigh of Relief: Elkundi & Ors v Birmingham City CouncilR (Elkundi) v Birmingham City Council [2021] EWHC 1024 (Admin); [2021] WLR(D) 235, QBD

Transparency Project: Misdiagnosis case update: Cardiff City Council v A Mother & Ors [2021] EWFC 44, Fam Ct

Transparency Project: Undoing an adoption order: AX v BX (Revocation of Adoption Order)[2021] EWHC 1121 (Fam), Fam D

UK Police Law Blog: Private bigotry, public discipline: BC v Chief Constable of the Police Service of Scotland [2020] CSIH 61; [2020] SLT 1021, Ct of Sess.

UK Police Law Blog: Article 2 inquest not required where police failures had already been fully investigated: R (Grice) v Brighton and Hove Senior Coroner [2020] EWHC 3581 (Admin), QBD

Free Movement: Criminality undermines strong private life case in deportation appeal: KM v Secretary of State for the Home Department [2021] EWCA Civ 693, CA

Free Movement: Appeal judges grapple with gaps in lawful residence: R (Akter) v Secretary of State for the Home Department [2021] EWCA Civ 704, CA

Other recent news and publications

£200 million investment in rehab services to cut crime

Charities and companies which help rehabilitate offenders have been awarded around £200 million of government funding to help cut crime in the new probation system, according to this announcement from the Ministry of Justice.

The Inferno of the private rental sector

Giles Peaker on the Nearly Legal housing law blog comments on a recent tranche of First tier Tribunal decisions on rent repayment order applications that have just shown up on Bailii.

“Collectively, they confirm that should you wish to take a journey through the nine circles of the hell of the private rented sector, rent repayment order decisions are a good way to find displayed what Dante tells us are the three conditions of sin — incontinence, vice, and brute bestiality. ”

Does publication of private information in other jurisdictions extinguish the right to privacy here?

Katherine Hooley on Inforrm’s Blog discusses the case of Sand Van Roy v Associated Newspapers, which resulted in an apology and compensation being paid by the Daily Mail after breaching the anonymity of an actress who had made a rape complaint to the police in about a French film director.

Constitutional Law: The Big Picture I — Introduction

First of a series of posts by Professor Mark Elliott on the Public Law for Everyone blog, publishing his virtual lectures to Cambridge students of constitutional law. “The aim of the lectures is to draw together the various issues and themes that students will have encountered during the course of the year,” he says, (so they may also serve as a useful overview of the topic for novices and those who might like to refresh their knowledge).

Munby 2.0 — Revised version of Sir James’ Submissions to the Transparency Review

Revised text of a submission by Sir James Munby, former President of the Family Division, to the current President Sir Andrew McFarlane’s current Transparency Review, in advance of the oral evidence session scheduled for 17 May 2021. Sir James has long been a trenchant proponent of more openness in the family justice system and one can only hope that he will turn out to have been pushing at an open door (as the saying goes) when the results of his successor’s review emerge.

The Patent Waiver Debate

Jane Lambert on the NIPC Law blog discusses proposals for waiving IP protections on COVID-19 vaccines to help end the pandemic and the potential adverse consequences of such a decision for future pharmaceutical development:

“The innovation that brought the world a portfolio of effective vaccines in little more than a year will be disincentivized. The public will be exposed to a greater risk of counterfeit vaccines and medicines. The viability of some businesses, particularly the SME that create new diagnostic tools or medical devices, will be threatened.”

“Net zero”, church heating, and the consistory courts

The consistory courts have an important role to play in authorizing some of the changes to church buildings that are necessary for the Church of England to meet its carbon reduction targets; some of these are identified in a General Synod document. A recent paper by Jacqueline Humphreys has assessed the current operation of the faculty jurisdiction and identified areas where changes are necessary. This recent post on the Law & Religion UK blog reviews judgments relevant to church heating, listed according to the date of the judgment.

Constitutional plumbing?

Joshua Rozenberg on his A Lawyer Writes blog considers the Lord Chancellor Robert Buckland’s explanation for his plans for reforming the scope of and remedies available under judicial review, following his review of administrative law.

Biden signs anti-hate crime Act following wave of attacks against Asian Americans

The Straits Times reports that US President Joe Biden last week signed into law an Act aimed at combating a wave of hate crimes, most prominently against Asian Americans. The Covid-19 Hate Crimes Act creates units in law enforcement agencies to tackle the problem and mandates expedited investigations among other things. “My message to all of you who are hurting is, we see you, and the Congress has said, we see you. And we are committed to stop the hatred and the bias,” Mr Biden said at a signing ceremony.

Sheikh Jarrah and equality in Israel

Nicholas Reed Langen on the Justice Gap explains the background to the pending decision of Israel’s Supreme Court over a real estate dispute in East Jerusalem that dates back to the foundation of the modern state of Israel and its likely impact on perceptions of discrimination and inequality between the Palestinian and Jewish population in Israel.

“It has become a court case symbolic of the Israel government’s expansionist desires and of the inequality that persists between Jews and Palestinians in Israel and the Occupied Territories. It is this that has sparked the conflict that now rages in the Holy Land.”

Elections and compulsory photo ID — what effect will it have on Gypsies and Irish Travellers?

Patricia Stapleton, Guest Author on Each Other, analyses the risk of further marginalising gypsies and Irish travellers.

Elections must be free of voter fraud

Lord Nicholas True, Minister of State for the Cabinet Office, puts the government’s case in a press release on Gov.uk.

Initial learning from the government’s response to the COVID-19 pandemic

Another report from the National Audit Office, this time focusing on the government’s response to the current pandemic. It follows an initial report a year ago.

Four Bars statement on the administration of justice post-pandemic

Statement by the Bars of England & Wales, Ireland, Northern Ireland and Scotland on the conduct of hearings once it is no longer essential for hearings to be remote. They conclude

“…our unanimous stance is as follows:
1. We are supportive of the continuing use of technology in our courts.
2. We are supportive of remote hearings becoming the default position for short or uncontroversial procedural business. We recognise that the appropriate use of remote hearings will be vital in tackling accrued backlogs in each of our jurisdictions.
3. However, for any hearing that is potentially dispositive of all or part of a case, the default position should be “in-person” hearings. Remote hearings should be available as an option in such cases where all parties (including the court) agree that proceeding in that way would be appropriate.”

Dates and Deadlines

FLBA scholarships

Applications now open— deadline 4 June 2021

The Family Law Bar Association has announced scholarships worth £15000 for those students who wish to practice at the Family Bar. Application forms included in details here (via Dropbox)

Inspiring Women 2021

Virtual conference — 14 to 16 June 2021, 5:00 to 7:30 pm

JUSTICE presents this year’s virtual Inspiring Women’s Fundraising Conference. Over three evenings, nine successful women working in different areas of practice will share their stories of careers in the law, before taking questions from our audience. We have invited these speakers for their success, but also for their passionate and wholehearted approach to life.

Tickets are £30 for JUSTICE Members and £50 for non-members. Book your ticket today to support JUSTICE’s work.

Information Law Virtual Conference 2021

11 KBW via Zoom: 16, 21–24, 28 June, 1, 5 July 2021

This year’s virtual Information Law Conference brings together 11KBW’s market-leading specialists and guest speakers from the ICO, the Court of Appeal and a leading American law firm, to provide insights and updates across the information law spectrum.

Topics covered include: Privacy Law: a view from the Bench — a conversation with Lord Justice Warby; Data Privacy Litigation: the evolution of privacy class actions, and wider developments in data privacy litigation; Global Britain: life after Brexit and overseas transfers; Data privacy in the public law arena; Media, privacy and open justice: the battle between privacy rights, free speech and open justice; E-privacy & E-commerce: what does the future hold? Data privacy litigation & regulation — how do the UK and US compare? with guest speakers including ICO Deputy Commissioner, Steve Wood, and leading US regulatory and class action privacy specialists, Lisa Sotto and Ann-Marie Mortimer, from Hunton Andrews Kurth LLP; Freedom of Information/Environmental Information Regulations update

To register in advance for these webinars, please email RSVP@11kbw.com.

Upper Tribunal Consultation Alert

Responses are requested by 1 August 2021

The 11 KBW Panopticon blog has drawn attention to the fact that the judiciary are running a consultation on the publication of judgments of the Upper Tribunal. Currently not all the judgments of this court of record (of equivalent status as the High Court) are published. The ones that will appear on BAILII, and some are reported elsewhere (eg by ICLR).

“[An] approach whereby only some of an appellate jurisdiction’s decisions are published — at the decision of the Judge — and then some are selected for reporting — apparently through a process of judicial ‘feel’ which sounds akin to the selection of a new Pope, but which has slightly unclear effects on the precedential effect of the decision — is arguably ripe for reconsideration.”

The consultation paper may be found here: UTAAC-Consultation-Paper-on-reporting-decisions-10-May-2021.pdf (judiciary.uk). Please do give the UT (AAC) your views.

And finally…

Tweet of the week

is from medical historian Dr Lindsey Fitzharris and contains useful information for anyone planning to breach the government’s guidance and travel back in time to eighteenth-century Italy.

That’s it for this term. Thanks for reading, and thanks for all your tweets and links. See you all after the Whitsun Vac. (NB. Trinity term will run from: Tuesday 8 June to Friday 30 July 2021)

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.