Weekly Notes: legal news from ICLR — 25 March 2019
This week’s roundup of legal news and commentary includes a march on Brexit, the pros and cons of naming killers, the discount rate for damages, plus transparency and media law updates.
Where are we now? (Put it to the People)
On Saturday 23 March a vast crowd, estimates of whose number varied from hundreds of thousands to over a million, marched from Hyde Park to Westminster Square to propose the idea of a second vote (‘Put it to the People’) on Brexit; and by Sunday more than five million had signed a petition calling on the government to revoke the article 50 notification of Britain’s intention to leave the EU. Meanwhile, a long walk organised by Leave Means Leave continued its 200-mile tramp to London, with barely a couple of hundred taking part.
On Sunday 24 March the Prime Minister held crisis talks at Chequers, her country retreat, with a number of mainly right wing pro-Brexit conservative MPs amid talk of a leadership challenge or interregnum, but the day seems to have ended with Theresa May still in position, if not fully power, and no one else having any very clear idea what might happen in Parliament in the coming week or whether she would once again propose her twice-rejected withdrawal agreement.
There often seems to be a sort of magical thinking being applied to the problem of Brexit, according to which it is simply a matter of changing just one thing — the Irish backstop, the customs union, the exit date, the Article 50 notification, even the person of the Prime Minister — and all will be well, or at any rate able to proceed. But this seems doubtful.
Earlier in the week, on 21 March the leaders of the remaining 27 EU nations agreed to extend Article 50 until 22 May, provided the Withdrawal Agreement is approved by the House of Commons next week. If it is not, the EU agrees to extend Article 50 until April 12, by which point the UK government is expected to indicate a way forward. (See Open Europe, EU grants unconditional Article 50 extension until April 12)
One question being asked is whether, instead of being revoked in accordance with the 5m+ petition, the article 50 notification could simply have its period (further) extended. Professor Mark Elliott considered the options in a post on Public Law for Everyone, Extending Article 50: Separating myth and legal reality. In a follow-up post, he discussed Redefining ‘exit day’ in domestic law
On the UK Constitutional Law Association blog, Alexandra Sinclair and Joe Tomlinson discuss the alarmingly extensive use of statutory instruments to enable Brexit: Brexit, Primary Legislation, and Statutory Instruments: Everything in Its Right Place?
On the UK Human Rights Blog, Rose Slowe of Foundry Chambers suggests that No Deal Brexit may be unlawful and that (contrary to the widely held assumption) “without an Act of Parliament authorising Brexit in whatever form, the legal default is that the Article 50 notice issued will lapse, if not unilaterally revoked”.
Naming and shaming—or faming?
Contrasting decisions on the identification of murderers have been made in England, Scotland and New Zealand, in each case in relation to cases that have attracted significant media attention and provoked widespread public horror and revulsion.
The English case concerns John Venables, as he then was, one of the 10-year-old killers of the two-year-old Jamie Bulger in 1993, who was sentenced to be detained during Her Majesty’s pleasure pursuant to section 53(1) of the Children and Young Persons Act 1933. In 2001 indefinite orders were made to prevent his identification, depiction or location, for his own protection. In 2010, following his release on licence and recall following further offending, a judge renewed the protection. This month, the victim’s family applied to lift the protection, but Sir Andrew McFarlane, President of the Family Division, refused to do so: Venables v News Group Papers Ltd  EWHC 494 (Fam). (See, on the ICLR Blog, David Burrows, Publicity and Jon Venables: application to vary a confidentiality injunction.)
Subsequently, it emerged that a number of people including a well known TV star had been committed for contempt of court in purporting to share on social media information in breach of the restrictions.
By contrast is the Scottish case of Aaron Campbell, who was 16 when he abducted, raped and killed the six-year-old Alesha MacPhail on the Isle of Bute last July. Last week Judge Lord Matthews imposed a life sentence with a minimum term of a 27 years after Campbell finally admitted his guilt (having previously denied it throughout the trial, and sought to deflect blame onto another). The BBC reported that
“Campbell’s confession was contained in the criminal justice social report and the criminal psychologist’s report, which were prepared ahead of his sentencing. [… ] Lord Matthews said the reports concluded that Campbell was not suffering from a mental health disorder but showed a total lack of victim empathy.”
Campbell could be named by the media because the judge had earlier set aside the reporting restrictions under a court order which had protected his identity because he was under the age of 18. (BBC: Alesha MacPhail murder: Judge lifts ban on naming killer Aaron Campbell.) Once he reached 18, he could have been named anyway. However, it seems that the law in Scotland was only changed about three years ago, and that prior to that date the age threshold for being named was 16. Of course, the fact that his real name has been revealed (as was that of Jon Venables) does not mean he may not assume a future new identity, either in or outside of prison.
But there might be another and better reason for preserving — or imposing — anonymity. Following the recent New Zealand mosque mass-shootings, the Prime Minister Jacinda Ardern made a point of NOT naming the killer, telling the New Zealand parliament: “He sought many things from his act of terror, but one was notoriety — that is why you will never hear me mention his name”. (BBC, Christchurch shootings: Ardern vows never to say gunman’s name) Campbell was not only a casual and brutal killer but he was also, in his own view it seems, a bit of a star, making selfie videos in the style of social media influencers. There is always the risk of influencing the wrong sort of behaviour, and it has been suggested that keeping notorious criminals anonymous decreases their potential to inspire ‘copycat’ offending. (USA Today, A single decision by New Zealand’s leader may prevent copycat killers) Presumably one could extend the principle to media coverage altogether, but it would be impossible to enforce a blackout in most cases, as well as being an interference with freedom of expression that would be hard to justify as necessary in a democratic society. However, New Zealand’s Chief Censor made the possession and distribution of the gunman’s manifesto unlawful there. If the denial of the oxygen of publicity really could prevent future mass shootings, that would at least justify some measures of suppression.
Discount rate review
Last week the Lord Chancellor David Gauke announced in a statement to the London Stock Exchange that he was beginning his review of the personal injury discount rate. Under the terms of the Civil Liability Act 2018, the Lord Chancellor must determine whether to change or keep the existing rate within 140 days of the start of the review, by 5 August 2019. A briefing note from the government actuary published in January 2019 explained:
The Personal Injury Discount Rate (‘PI discount rate’) is used to determine lump sum damage awards to claimants who suffer a serious personal injury.
Historically the Damages Act 1996 provided for the Lord Chancellor to set the PI discount rate, and this was done on the basis of principles set out in case law, principally the decision of the House of Lords in Wells v Wells  1 AC 345. Under these principles the PI discount rate has been set with reference to yields on Index-Linked Gilts — resulting in a current rate of RPI-0.75%.
On 20 December 2018, the Civil Liability Act 2018 received Royal Assent, thus introducing a change to the way that the PI discount rate is to be set in the future under the Damages Act 1996 (‘the Act’).
The Act provides for the Lord Chancellor to set the PI discount rate with reference to the return that a claimant would reasonably expect to achieve if they invested in a “low risk” diversified portfolio. In doing so, the Lord Chancellor is to have regard to the following when setting the rate:
- the actual investments made by claimants;
- the actual returns that are available to claimants; and
- the appropriate allowance for tax, inflation and investment fees.
Transparency Project guides
The Transparency Project have recently made some minor updates to a number of their guidance notes, which can be found here. They have updated the pdfs of each, which are free to download and use, and will shortly be updating the online web versions too.
- Common Law Marriage — The rights of unmarried couples & the myth of common law marriage — A guidance note
- Section 20 of the Children Act 1989 — A guidance note for parents & professionals
- Publication of Family Court Judgments — A guidance note for families & professionals
- Media Guide — Attending and reporting family law cases
- The use of experts in family court cases involving children — A guidance note for parents & professionals
- How Do Family Courts Deal With Cases About Children Where There Might Be Domestic Abuse? — A guidance note for parents & professionals
The guidance notes are free to download, but if your organisation would like some hard copies of the guidance note they have a limited supply available, thanks to funding / sponsorship from the Legal Education Foundation and Bloomsbury Professional Family Law. Please email them if you would like some.
Social worker spies
On her Pink Tape blog, Lucy Reed takes a long cold stare at social workers (and others) who conduct surveillance on the private lives and social media accounts of parents and families. Social work spies? (Yes, you over there I’m talking to you…)
Among the few sets of chambers specialising in media law, One Brick Court has long been one of the most prominent, so it was major news when they announced last week that from 19 June 2019 they would be dissolving due to “recent unexpected departures and a retirement”. Seven members including Andrew Caldecott QC will be moving to join their rival set at 5RB (Five Raymond Buildings, formerly 10 South Square) while others will be going to Doughty Street and to Matrix chambers. Though eminent in their specialist field, Inforrm’s blog comments that
“One Brick Court, was a small, traditional, set of barristers chambers which was well regarded in the marketplace. Its dissolution is the end of an era and will be a cause of great sadness among media lawyers.”
The Times legal department has expanded its links with leading law firms and barristers chambers in offering fellowships to trainees to “give trainees and junior lawyers the chance to work with its in-house legal team, and to nurture new talent in media law.” The fellowships have been created in conjunction with a number of leading firms and chambers, including law firm Reynolds Porter Chamberlain and chambers at One Brick Court (while it continues to exist, presumably), Matrix and Doughty Street.
See: The Times, New generation of media lawyers (£)
Launch of ICLR&D
On 27 March we will be launching our Research & Development portal, with a brand new website and news of exciting projects and collaborations. All will be explained in a separate post on the blog. Watch this space.
Last week Daniel Hoadley, Head of Design and Research at ICLR (aka @DanHLawReporter), and Paul Magrath, Head of Product Development (aka @Maggotlaw ), attended the Legal Futures conference on the Future of Civil Litigation. We’ll be writing a separate post about this.
Meanwhile, in other ICLR news, Magrath has published an article about internet regulation in The Lawyer: Regulating the wind — can the government tame the tech giants of the internet? (You may need to register, but it’s free to read.)
The Foundation for Law, Justice and Society published a post about the Putney Debates 2019 in which Magrath appeared on a panel chaired by Joshua Rozenberg on the subject of judicial independence.
Add us to your blog roll
We are pleased to note that ICLR blog and ICLR.3 feature in a revised blogroll on Inforrm’s blog, Spring Cleaning the Blogroll — John-Paul Tettmar-Saleh. If you list other blogs on your site, consider adding us too (use this URL: https://www.iclr.co.uk/blog ) A number already do, of course, and we come up easily enough in an online search. However, we’ve noticed in some cases the redirects are not working from some of our older blog posts. If that happens, enter the title of the linked-to blog post into our search or the keywords, and find it that way. (If problem persists, do please report it to us via our Contact page.)
NB Next monday we’ll have a special feature on the blog to mark the first of the new month.
Tweet of the week
is from criminal barrister Gareth Underhill on the subject of the oft-repeated Meaningful Vote:
The Meaningful Verdict, presumably.
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.