Weekly Notes: legal news from ICLR, 24 October 2022

This week’s roundup of legal news includes coronations, courts, inquiries, and the cops, plus recent case law and commentary.

“Uneasy lies the head that wears the crown” (Shakespeare, Henry IV, pt II)

Politics

Buckingham Palace has been pleased to announce that the Coronation of His Majesty The King will take place on Saturday, 6 May 2023. The ceremony will take place at Westminster Abbey, London, and will be conducted by the Archbishop of Canterbury.

Meanwhile, somewhat nearer the present day, another “coronation” is said to be taking place, whereby (following internal wrangling, a late withdrawal and some high-profile allegiance-switching within the parliamentary Conservative Party) Rishi Sunak MP will assume the role (recently vacated by Liz Truss MP) of Prime Minister of the United Kingdom. He will be the fifth person to occupy this office since the UK voted to exit the European Union in June 2016, but the first who wholeheartedly supported the policy ab initio rather than on a pragmatic basis for personal or political reasons.

When campaigning against Truss for the party members’ vote over the summer, Sunak wrote an article for the Daily Telegraph saying there are “2,400 [EU] laws on our statute book” and promising that, if he became Prime Minister, he would create a new “Brexit delivery department” which would be focused on removing or reforming these laws in order to “capitalise on the freedoms” of Brexit. He was taken to task by Full Fact for failing to point out that many of the retained EU laws had been amended, repealed or replaced: Rishi Sunak pledge to review ‘2,400’ remaining EU laws doesn’t tell the full story.

Over the weekend there was a big public demonstration in support of the idea of rejoining the EU: see Guardian, Thousands of London protesters call for UK to rejoin EU. While such demonstrations generally help to reinforce a sense of solidarity among participants sharing particular views, they never seem to have much effect on policy. Given his hardline approach to Brexit, it seems unlikely this demonstration will have much effect on Sunak’s government. One of the Bills currently going through Parliament is the Retained EU Law (Revocation and Reform) Bill, introduced by Jacob Rees-Mogg when he was Brexit opportunities minister in the Cabinet Office, which seeks to “completely overhaul the constitutional architecture of retained EU law, making it (on the whole) much easier to revoke, modify or replace through secondary legislation”.

Apart from the Brexit hangover, Sunak faces a number of critical problems, including a downgraded economy and Russian threats of military escalation in Ukraine.

Courts

The Courts and Tribunal Judiciary Site has today published new guidance in relation to electronic bundles. Commenting on the release, Gordon Exall on his Civil Litigation Brief blog notes:

“If I were to highlight one matter it is the need for the bundle to start at page one (whether or not that is part of an index). The major problems that can occur at hearings when there is a discrepancy between the pdf page number and the bundle page number seem to continue.”

The perils of bundle mispagination were highlighted perhaps most famously in the Prorogation Case in the Supreme Court, where Lord Pannick QC (as he then was) was obliged to recalculate the page number each time he cited from a printed bundle that had been differently paginated from the electronic one supplied to the court. The incident acquired the Twitter tag #bundlegate and was described in another post on Exall’s blog.

Legal Futures reports that law students could soon be helping litigants in person (LiPs) through a scheme with Support Through Court (STC), alongside more qualified volunteers such as retired solicitors. It’s important to stress that the students are not giving legal advice as such, but offering emotional and practical support to those representing themselves in court in cases involving family disputes, debt, road traffic accidents or housing problems. See Legal Futures: LiP support goes hybrid with 700 law student volunteers

One of the problems faced by courts dealing with LiPs or self represented litigants (SRLs as they are known in Canada) is the perception that the courts are biased against them, or that the lawyers for the other parties are somehow conspiring with the court against them. This is the subject of a recent article on SLAW, the Canadian legal magazine: Navigating the Apprehension of Bias as a Self-Represented Litigant in Canada and Nigeria

Inquiries

The Report of the Independent Inquiry into Child Sexual Abuse (IICSA), chaired by Professor Alexis Jay OBE, was published on 20 October 2022. The report sets out the main findings about the extent to which State and non-State institutions failed in their duty of care to protect children from sexual abuse and exploitation and makes recommendations for reform.

It draws on the Inquiry’s 15 investigations and 19 related investigation reports, the Interim Report of the Independent Inquiry into Child Sexual Abuse and 41 other Inquiry reports and publications. The Inquiry has made 20 recommendations in this report. These final recommendations complement the 87 recommendations contained in the previously published investigation reports (including six which have been restated).

The Executive Summary notes that

  • historically, inadequate measures were in place to protect children from the risk of being sexually abused — sometimes there were none at all;
  • individuals and institutions often thought children were lying when they tried to disclose what was being done to them;
  • victims were frequently blamed as being responsible for their own sexual abuse;
  • child sexual abuse is not a problem consigned to the past, and the explosion in online-facilitated child sexual abuse underlines the extent to which the problem is endemic within England and Wales;
  • the true scale of sexual abuse of children is likely to have been much higher than the actual numbers recorded.

The most prominently reported of the Inquiry’s recommendations was Recommendation 13: the introduction of mandatory reporting in England and Wales of any child sexual abuse of which certain individuals — ‘mandated reporters’ — become aware in the course of their work, namely:

  • any person working in regulated activity in relation to children (under the Safeguarding and Vulnerable Groups Act 2006, as amended);
  • any person working in a position of trust (as defined by the Sexual Offences Act 2003, as amended); and
  • police officers.

The Home Secretary Grant Shapps MP (appointed only the previous day, following the resignation of Suella Braverman KC as reported last week) said:

“The government will respond in full to the inquiry’s report within six months, when proper consideration has been given to all of the recommendations, but today the Home Secretary announced a further £4.5 million for organisations supporting victims and survivors of child sexual abuse at a national level. … In addition, the Home Secretary will champion children’s safety at the highest levels and convene ministers from across government to drive action against the inquiry’s recommendations.”

See: Home Secretary pledges new chapter to end child sexual abuse

Law & Religion UK, IICSA, sacramental confession and mandatory reporting of child sexual abuse

BBC, Child sex abuse: The horrific findings of a seven-year inquiry

Police

Baroness Casey of Blackstock’s interim report into the culture and standards at the Metropolitan Police Service, published on 17 October 2022,

“raises significant concerns, including that fewer officers are being dismissed, officers with multiple allegations made against them are still serving the public and police from ethnic minorities are disproportionately represented in the misconduct system”.

So says an announcement from the Home Office, which says it will “launch a targeted review of police dismissals to raise standards and confidence in policing across England and Wales”. The Home Office review is likely to consider:

  • the effectiveness of the existing system to dismiss those who fall seriously short of the standards expected by policing and the public
  • the impact of the introduction of changes to misconduct panels, including legally qualified chairs
  • whether forces are making use of their powers to discharge officers during their probationary period

The interim report sets out the evidence to support Baroness Casey of Blackstock’s conclusions about the current misconduct system in the Met, as set out in her letter of 17 October 2022 to the Commissioner of the Metropolitan Police Service. “In summary,” she writes “my conclusion is that the misconduct system is not delivering in a way that you, I, your officers or the public would expect it to.”

See also: Udit Mahalingam, The Justice Gap, Met’s misconduct system needs ‘radical and wholesale reform’

Other new items:

In a recent episode of the podcast Talking about Methods, Professor Linda Mulcahy talks to Dr Mark Coen (School of Law, University College Dublin) about interviewing judges. You can listen to the podcast here.

Watch Lord Leggatt’s Keynote Speech ‘Would you believe it?’ at the At A Glance Conference 2022. Excellent discussion of questions around the value of witness demeanour and the reliability of witness evidence. You can watch the speech here.

A speech given by Dunja Mijatović, Council of Europe Commissioner for Human Rights, at the European Anti-SLAPP Conference on 20 October 2022, described Strategic Litigation Against Public Participation (SLAPPs) as

“a serious threat to freedom of expression, freedom of assembly and to the right to acquire information for public interest. They also pose a problem for the justice system and the rule of law more generally because courts are occupied by specious civil or criminal suits filed by individuals or companies taking advantage of democratic institutions to undermine pillars of democracy.”

The speech outlines action already taken and further measures required to prevent the abuse of “one of the most hurtful tools to stifle free speech”.

There was a debate in Parliament on Monday 17 October 2022 on “Lawfare and Investigative Journalism”, which also highlighted the problem of SLAPPs and mentioned (taking advantage of parliamentary privilege) some egregious recent examples.

(h/t Inforrm’s latest Law and Media Roundup.)

The All-Party Parliamentary Humanist Group has published a second report, No Lawful Impediment, calling for immediate legal recognition of humanist marriages in England and Wales. For more on this, see Law & Religion UK, Humanist parliamentarians call for weddings law reform

Legal Business in conversation with Post Office litigator James Hartley, of Freeths, who led the civil group claim (the Bates litigation). After protracted legal battles, in 2019 the Post Office settled with the 555 claimants, agreeing to pay £58m in damages. As of March 2022, 72 former postmasters had their convictions overturned, with convictions being quashed regularly since. It is officially the UK’s worst ever miscarriage of justice in terms of scale. You can listen to the recording here.

The UK’s justice system is “ill-equipped” to tackle a spiralling fraud epidemic and needs a rapid overhaul, according to the Justice Select Committee’s recent report, Fraud and the Justice System (HC 12, 18 October 2022). The report notes that “There is currently an epidemic of fraud cases in England and Wales”, a crime that “can have profound impacts on an individual” and yet, “throughout the justice system, fraud is not considered a priority area”. The report concludes that

“Overall, a wholesale change in philosophy and practice is needed to the way in which we fight fraud — one that takes it more seriously, gives it greater priority and resourcing, is more proactive in prevention, more aggressive in investigation, prosecution and conviction, and much more focused on its impact upon victims”.

See also: Guardian, UK justice system ‘ill-equipped’ for rise in fraud, say MPs

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

CHILDREN — Care proceedings — Non-accidental injury: In re A (Children) (Practice Note), 17 Oct 2022 [2022] EWCA Civ 1348; [2022] WLR(D) 405, CA

CONSUMER PROTECTION — Consumer credit — Agreement: Steiner v National Westminster Bank plc, 10 Oct 2022 [2022] EWHC 2519 (KB); [2022] WLR(D) 403, KBD

CONTRACT — Construction — Derivative agreements: Macquarie Bank Ltd v Phelan Energy Group Ltd, 18 Oct 2022 [2022] EWHC 2616 (Comm); [2022] WLR(D) 406, KBD

CONTRACT — Construction — Derivative agreements: In re Lehman Brothers International (Europe) Ltd (Grant v FR Acquisitions Corpn (Europe) Ltd), 11 Oct 2022 [2022] EWHC 2532 (Ch); [2022] WLR(D) 407, Ch D

CRIME — Sentence — Kidnap: R v Bowskill (Attorney General’s Reference), 19 Oct 2022 [2022] EWCA Crim 1358; [2022] WLR(D) 408, CA

HOUSING — Homeless persons — Housing duty: Norton v Haringey London Borough Council, 19 Oct 2022 [2022] EWCA Civ 1340; [2022] WLR(D) 404, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

Local Government Lawyer: No duty owed to taxi driver: Wokingham Borough Council v Arshad [2022] EWHC 2419 (KB), KBD

Open Justice Court of Protection Project: Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44: A (Covert Medication: Closed Proceedings) [2022] EWCOP 44, Ct of Protection

RPC Perspectives: Lack of documentary evidence no bar to proving capital loss claim: Goksu v Revenue & Customs Comrs [2022] UKFTT 213 (TC), FTT (TC)

Nearly Legal: No cause of action at common law for wrongful eviction: Brake v The Chedington Court Estate Ltd [2022] EWCA Civ 1302, CA

Panopticon: DPA breach at “lowest end of spectrum”: High Court awards £250: Driver v Crown Prosecution Service [2022] EWHC 2500 (KB), KBD

Law Society Gazette: Supreme Court rules on creditor duty: BAT Industries plc v Sequana SA2 [2022] UKSC 25; [2022] 3 WLR 709, SC(E)

Free Movement: Lack of route for victims of transnational marriage abandonment is unlawful, High Court finds: R (AM) v Secretary of State for the Home Department [2022] EWHC 2591 (Admin), KBD

Legal Futures: Leading PI firm sues insurance trade magazine for libel: Direct Accident Management Ltd & Anor v Newsquest Specialist Media Ltd [2022] EWHC 2572 (KB), KBD

Park Square Barristers: Expert falling short in his duty to the court: Hertfordshire County Council v Mother & Ors [2022] EWFC 106, FC

Nearly Legal: Requirements for private sector offers in discharge of duty: Norton v Haringey London Borough Council [2022] EWCA Civ 1340; [2022] WLR(D) 404, CA

And finally…

is from barrister Max Hardy on the false lure of excitement in the signage at the RCJ:

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.

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