Weekly Notes: legal news from ICLR, 26 July 2021

This week’s roundup of legal news and commentary includes new legislation affecting courts, journalists, and judges; internet offences; justice data; failings in the criminal justice system; and some recent case law.

Photo by Sora Shimazaki from Pexels

Legislation

Judicial Review and Courts Bill

The government has been talking about reforming judicial review ever since the idea was flagged up in the Conservative Party manifesto for the last general election, and gave the impression it would go further than the modest recommendations in the report of the Independent Review of Administrative Law (IRAL) chaired by Lord Faulks. See also the Lord Chancellor’s keynote speech on Judicial Review (given at Policy Exchange, home of the Judicial Power Project).

But the Judicial Review and Courts Bill 2021 published on Wednesday 21 July 2021 appears to have adopted a milder and more mixed approach than expected. The manifesto promised to

“ensure that Judicial Review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.”

But according to Tom Hickman QC on the UK Constitutional Law Association blog,

“Despite commissioning a wide-ranging review of administrative law, the Judicial Review and Courts Bill 2021, unveiled this week, does not include restrictions on judicial review that many had feared. Indeed, it says relatively little about judicial review.”

He suggests that in some ways, eg by allowing courts to suspend quashing orders, the Bill actually gives the courts more power, not less. However, in other ways it reduces the scope for the courts to review administrative action, notably in relation to “Cart” judicial reviews (see R (Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663.) As As Obiter J explains on the Law and Lawyers blog, the Bill will make Upper Tribunal decisions not to grant permission to appeal final, and not subject to review by any other court.

This is something about which the Public Law Project (who intervened in the Cart case) has expressed concern:

“The Bill appears to weaken, rather than reinforce Government accountability. This would undermine the Government’s stated objectives of protecting the individual from an overbearing state.

It is particularly troubling that the Government is planning to remove Cart JRs in a way that is intended to create a framework for future legislation to ‘oust’ the jurisdiction of the courts. Quite simply, the intent of ‘ouster’ legislation is to immunise the Government from accountability for acting unlawfully. An ‘ouster’ is a ‘get out of jail free’ card.

Close attention needs to be paid to provisions in the Bill which seek to suspend the effect of remedies or take away their retrospective effect.”

See also:

• Joshua Rozenberg, A Lawyer Writes, Fettering the courts’ discretion
• CJ McKinney, Free Movement, Judicial Review Bill to abolish most Cart cases
• Paul Craig, SSRN, Judicial Review, Methodology and Reform

Part 2: the courts

The provisions in Part 2 of the Bill dealing with the courts include a number of administrative changes, including the establishment of an Online Procedure Rule Committee (previously provided for under the Courts and Tribunals (Online Procedure) Bill 2017–19, which failed to complete its stages before the last election).

But they also include provisions that could have a drastic effect on open justice and the ability of journalists to report pending cases. For example, defendants will be able to plead guilty and have cases disposed of without any court hearing at all in summary cases; and in cases going to trial in either a magistrates’ or the Crown Court, defendants will be able to plead online, via the Common Platform, rather than at a physical court preliminary hearing. Such hearings routinely provide material for journalists to hear about forthcoming trials.

According to the Explanatory Notes, the measures will complement criminal court measures in the Police, Crime, Sentencing, and Courts Bill (“the PCSC Bill”) (which enable greater use of audio and video technology in criminal proceedings where appropriate), and the judicial powers of authorised court officers created by the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018.

Official Secrets and state threats

Government plans to reform the Official Secrets Acts 1911 to 1989 and to counter state threats more generally have been criticised following the completion of a consultation exercise. The Home Office consultation on Legislation to Counter State Threats (Hostile State Activity) ran from 13 May to 22 July 2021. The government’s legislative proposals sought to do 3 things:

• Modernise existing counter espionage laws to reflect the modern threat and modern legislative standards;
• Create new offences, tools and powers to detect, deter and disrupt hostile activity in and targeted at the UK
• Improve our ability to protect official data and ensure the associated offences reflect the greater ease at which significant harm can be done.

The proposals have sparked some alarm, notably in relation to their effect on journalism. In its Submission to Government consultation on Official Secrets Act reforms the Press Gazette says it has expressed its “concern that journalists would be treated like spies and so punished for sensitive stories”. See also:

• Press Gazette, UK journalists could be jailed like spies under proposed Official Secrets Act changes
• The Conversation, Official Secrets Act: home secretary’s planned reform will make criminals out of journalists

Public Service Pensions and Judicial Offices Bill

Yet another piece of legislation dealing with the justice system is the Public Service Pensions and Judicial Offices Bill, which includes the retirement age of magistrates being raised to 75, had its first reading in the House of Lords on 19 July. This Bill is hopefully less controversial than the two above.

According to Pensions Expert

“The goal behind the provisions for the judiciary is to support ‘recruitment and retention in the judiciary and [to ensure] our judiciary can continue to meet the demands of the justice system, by reforming their pension arrangements and increasing the judicial mandatory retirement age’.

It is also aimed at ‘increasing flexibility to tackle recruitment and retention issues in the judiciary by putting allowances on a firmer legal footing’.

Members of the judiciary will be moved into a reformed pension scheme ‘owing to the judges’ unique circumstances of appointments’, while the mandatory retirement age of judicial office holders will be raised from 70 to 75, and the power to set judicial allowances will be placed ‘on firmer legal footing’.”

Communications

Law Reform proposals

Reforms to protect victims of online abuse and safeguard freedom of expression were announced last week by the Law Commission. The recommendations include a coherent set of communications offences to more effectively target harmful communications while increasing protection for freedom of expression.

“The proposals would reform the ‘communications offences’ found in section 1 of the Malicious Communications Act 1988 (MCA 1988) and section 127 of the Communications Act 2003 (CA 2003). These offences do not provide consistent protection from harm and in some instances disproportionately interfere with freedom of expression.

The reforms would address the harms arising from online abuse by modernising the existing communications offences, ensuring that the law is clearer and that it effectively targets serious harm and criminality. The recommendations aim to do this in a proportionate way in order to protect freedom of expression. They also seek to ‘future-proof’ the law in this area as much as possible by not confining the offences to any particular mode or type of communication.”

Among the behaviour targeted would be ‘cyberflashing’, encouragement or glorification of serious self-harm, sending flashing images with intent to induce a seizure, causing harm by making knowingly false communications, and threatening communications.

In a separate by related development, campaign group Clean up the Internet have proposed measures to tackle the abuse of anonymity of social media accounts.

Courts

Justice system data

The Legal Education Foundation have published a report ‘Justice system data’ : a comparative study by Dr. Judith Townend and Dr. Cassandra Wiener, which “explores international approaches to defining, managing, and sharing justice system data”— information generated by the process of justice — “and considers the impact of these approaches on judicial independence, innovation, and public understanding of and confidence in the justice system”.

The report was commissioned by The Legal Education Foundation (TLEF) as part of its ‘Smarter Justice’ programme. It focuses on three other common law jurisdictions, Australia, Canada and Ireland, and considers how data-sharing methods are perceived to relate to judicial independence, innovation, and public understanding and confidence in the justice system.

“The research found that whilst there is a common understanding across the jurisdictions of the nature and importance of justice system data, policies and processes for managing and sharing data have not been purposively designed. In opening up justice data, challenges and tensions across the jurisdictions were also exposed: the impact of legacy practices; the under-investment in and a decentralised approach to technological reform; a data deficit for user and case experience; a tension between privacy and transparency in the provision of court records containing personal data; and a lack of accountability measures to ensure the effective management of justice system data.”

In light of their findings, the authors argue that there is a need for:

• Clearly presented policies, shared publicly, on the differing roles for executive, court service, judiciary and any third-party providers in the management of justice system data.
• Accountability mechanisms for access to justice data: i.e. appropriate routes of application and appeal for accessing justice data that is not readily available in the public domain.
• Consideration of public and court user views and experiences in the design of justice system data processes (especially with regard to the use of personal data).
• Detailed measurement of the impact of data sharing practices on outcomes of the justice system.

Read the full report and recommendations (PDF). A summary of the key findings and recommendations can be accessed here.

Crime

Justice collapsing

Byline Times reports that thousands of criminal cases are collapsing in England and Wales every year due to missing and lost evidence.

“A total of 11,736 cases collapsed due to key evidence being missing between the start of October 2018 and the end of June 2020, according to data acquired by Byline Times through a Freedom of Information request. Of these, 21 were homicide cases and 220 were sexual offence cases. A total of 2,146 cases involving bodily harm or the threat of bodily harm collapsed due to missing or lost evidence over that time period, as well as 1,505 cases involving theft or handling stolen goods.”

Closure of the central Forensic Science Service (FSS) in 2012 and the lack of space and expertise among police forces are among the factors blamed in the article.

‘Woeful’ CPS

The Guardian reports that Dame Vera Baird, the Victims’ Commissioner of England and Wales has described the performance of the Crown Prosecution Service as “woeful” and said it must be “held to account” for its continued “betrayal” of rape victims, as new figures reveal that rape prosecutions have fallen to another record low. Charges in rape cases “are now exactly half of what they were in 2015–16”, the article reports.

“The CPS is under unprecedented pressure, with rape prosecutions plummeting 70% since 2016–17 to their lowest levels on record. Last month a government end-to-end review ordered the CPS to increase the volume of charges and cases reaching court to pre-2016 levels before the end of this parliament, while police were ordered to increase the number of cases they referred to the CPS by the same amount.”

New Home Office strategy

The Home Secretary has published the government’s new strategy to ensure women and girls are safe everywhere — at home, online and on the streets. Titled Tackling violence against women and girls strategy, it explains how the government “will prioritise prevention, support survivors, pursue perpetrators and create a stronger system”. The strategy

“will further support the action already being taken to improve the criminal justice response to rape, toughen sentences and protection for victims through the Police, Crime, Sentencing and Courts Bill, as well as the recruitment of 20,000 more police officers to make our streets safer.”

The Home Secretary, Priti Patel, says in her foreword to the strategy paper:

“In December, for the first time, I opened a Call for Evidence to hear directly from the public on tackling violence against women and girls. Following the national outpouring of grief as a result of the tragic case of Sarah Everard, I reopened it. Amazingly, we received more than 180,000 responses. That is unprecedented. It made for essential but grim reading. Every day, women and girls have bad experiences at school, at work, on buses and trains, on the street, and even at home. Many respondents felt that crimes like sexual harassment are almost an inevitable part of being a woman.”

Victoria Atkins MP, Minister for Safeguarding also comments:

“These crimes can be sexual, violent and frightening. They take place behind our front doors and beyond them. The range of crimes covered by the term ‘violence against women and girls’ is shocking. Some of these crimes are life-changing; a juncture after which time is measured as ‘before’ or ‘after’. Other crimes may not cause such seismic change but are, instead, in the background of our lives — ordinary, rarely commented on or complained about.”

The judge

A shocking example of a type of crime that can take place “behind our front doors” was provided by an article in the Observer on 25 July, concerning recollections by Clare Devlin of being sexually abused as a girl by her father, the famous judge and jurist Lord Devlin, author of The Enforcement of Morals (1965). Generations of law students have been told to read that book and discuss it alongside the opposing argument expressed in Law, Liberty and Morality (1963) by HLA Hart.

Many will have expressed shock and disgust at these revelations; but not everyone will have been surprised, particularly in the age of #MeToo, the Epstein scandal, and the continuing Independent Inquiry into Child Sexual Abuse, to whom Clare Devlin has provided evidence.

Recent case summaries from ICLR

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

ARBITRATION — Practice — Confidentiality: Manchester City Football Club Ltd v Football Association Premier League Ltd, 20 Jul 2021 [2021] EWCA Civ 1110; [2021] WLR(D) 410, CA

CONTRACT — Construction — Liquidated damages clause: Triple Point Technology Inc v PTT Public Co Ltd, 16 Jul 2021 [2021] UKSC 29; [2021] WLR(D) 411, SC(E)

CONTRACT — Mistake — Common mistake: Ralph v Ralph, 22 Jul 2021 [2021] EWCA Civ 1106; [2021] WLR(D) 408, CA

DISCRIMINATION — Race — Burden of proof: Efobi v Royal Mail Group Ltd, [2021] UKSC 33; [2021] WLR(D) 407, SC(E)

GOVERNMENT — Powers — Public health: R (Manchester Airports Holdings Ltd) v Secretary of State for Transport, 20 Jul 2021 [2021] EWHC 2031 (Admin); [2021] WLR(D) 404, QBD

IMMIGRATION — Deportation — Conducive to public good: Sanambar v Secretary of State for the Home Department, 16 Jul 2021 [2021] UKSC 30; [2021] WLR(D) 409, SC(E)

LANDLORD AND TENANT — Covenant — Service charges: East Tower Apartments Ltd v No 1 West India Quay (Residential) Ltd, 21 Jul 2021 [2021] EWCA Civ 1119; [2021] WLR(D) 403, CA

NEGLIGENCE — Duty of care — NHS dental practice: Hughes v Rattan, 21 Jul 2021 [2021] EWHC 2032 (QB); [2021] WLR(D) 405, QBD

PLANNING — Development — Certificate of lawful use: Royale Parks Ltd v Secretary of State for Housing, Communities and Local Government, 19 Jul 2021 [2021] EWCA Civ 1101; [2021] WLR(D) 406, CA

PRACTICE — Claim form — Service out of jurisdiction: ID v LU, 16 Jul 2021 [2021] EWHC 1851 (Comm); [2021] WLR(D) 400, QBD

Recent case comments on ICLR

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

UK Human Rights Blog: Child Tax Credit: Two-Child Limit and the Limits of Review: R (SC) v Secretary of State for Work and Pensions[2021] UKSC 26; [2021] 3 WLR 428; [2021] WLR(D) 382, SC(E)

Nearly Legal: Surrender to the churn — deposits and shared houses: Sturgiss v Boddy [2021] EW Misc 10 (CC), County Ct

UK Supreme Court Blog: Case Comment: R (on the application of Fylde Coast Farms Ltd (formerly Oyston Estates Ltd)) v Fylde Borough Council [2021] UKSC 18: R (Oyston Estates Ltd) v Fylde Borough Council [2021] UKSC 18; [2021] 1 WLR 2794; [2021] WLR(D) 281, SC(E)

UK Labour Law: Protection for striking workers: is there an end to the UK anomaly because of Mercer v Alternative Futures Group Protection? Mercer v Alternative Future Group Ltd [2021] UKEAT 0196_20_0206, EAT

RPC Perspectives: Goodwill, Bad Faith and Brotherly Luv: Court of Appeal finds “special circumstances” to allow defence to Passing Off claim: Thomas v Luv One Luv All Promotions Ltd [2021] EWCA Civ 732; [2021] WLR(D) 296, CA

Civil Litigation Brief: The civil justice system does not cower in the shadows: it is difficult for litigants to be anonymous: no “parliamentary privilege” here: Various Claimants v Independent Parliamentary Standards Authority [2021] EWHC 2020 (QB), QBD (Nicklin J)

UK Supreme Court Blog: New Judgment: Harcus Sinclair LLP and Anor v Your Lawyers Ltd [2021] UKSC 32: Harcus Sinclair llp v Your Lawyers Ltd [2021] UKSC 32, SC(E)

Free Movement: Visit visas can count towards ten years’ long residence: R (Mungur) v Secretary of State for the Home Department [2021] EWCA Civ 1076; [2021] WLR(D) 393, CA

Free Movement: Home Office can revoke settlement over historical deception: R (Matusha) v Secretary of State for the Home Department [2021] UKUT 175 (IAC), UT (IAC)

Other recent publications

Legal profession

Legal Cheek reports that Bar course pass rates drop 18% during pandemic. This is depressing but perhaps not surprising, given how difficult conditions have been generally, for studying and exams, and for training opportunities in the midst of a pandemic.

“The coronavirus pandemic impacted both the number of students completing the bar course in the last academic year as well as those proceeding to pupillage, a new report released by the Bar Standards Board (BSB) has found.

Of students enrolled on the Bar Professional Training Course (BPTC) in 2019–20, 18% less completed the course in that year compared with the year before. Meanwhile, just 10% of UK/EU graduates from this intake began pupillage in 2020–21, compared to 23% of the 2018–19 cohort who began pupillage in 2019–20.”

Nor are things easy for those who do get into the profession, given the nature of some of the work. The concept of ‘vicarious trauma’ and mental welbeing more generally are discussed in a New Lawpod UK episode: Vicarious trauma in the legal profession. Presenter Emma-Louise Fenelon speaks to Rachel Francis and Joanna Fleck, authors of a book about the subject: Vicarious Trauma in the Legal Profession: a practical guide to trauma, burnout and collective care (published by Legal Action Group and is available to buy here).

Family law

The Channel 4 Dispatches documentary, Torn Apart: Family Courts Uncovered (which we flagged up last week), about the court ordered removal of children from parents following allegations or findings of parental alienation, provoked some strong reactions, as well as complaints that it showed a partial or incomplete picture of the family justice system.

One reason for this might be the draconian legal restrictions on publishing anything about real cases, because they are heard in private — which was part of the point the programme was making. We understand there were other cases it hoped to discuss but could not. In that sense it make a strong case for the repeal of section 12 of the Administration of Justice Act 1960, which prevents reporting of cases heard in private. There was also worrying evidence in the programme about the courts’ reliance on unregulated experts on the controversial subject of parent alienation, and of the lack of research into outcomes and the long term effects of child removal on this basis.

The Transparency Project has now published two comments by different members (and note, for transparency, the programme’s reporter and presented, Louise Tickle is also a member):

• Lucy Reed: Dispatches — why all the commotion is a good thing
• Alice Twaite: Why I am OK with Dispatches

See also: Sarah Phillimore, Child Protection Resource, When Facts Don’t Matter

Religious activity

In Vaccine passports and places of worship, David Pocklington on the Law & Religion UK blog discusses a recent position paper from the Church of England which stated

“While the Church is, in principle, opposed to making use of ‘vaccine passports’, it should adopt a flexible approach to their limited wider use with the important caveats that such use ought to be demonstrably beneficial to society as a whole, protective of the vulnerable in particular, non-discriminatory in nature and proportionate in use.”

The blog observes that the Church’s paper was issued “at the end of a week in which there has been confusion on the government policy on ‘vaccine passports’,” and that continues to be the case. See also, by Frank Cranmer on the same blog, Law and religion round-up — 25th July.

Musical inactivity

In (Sex) Pistols at dawn over Danny Boyle’s new biopic series the normally serious RPC Perspectives blog discusses a current case in which two members of the former punk rock band the Sex Pistols are battling against the refusal of former front man known as Johnny Rotten (John Lydon) over permission to use his or joint compositions in a forthcoming TV programme about the band. A suitable working title might be Never Mind the Copyrights, Here’s the Sex Pistols. It’s actually going to be calling Pistol. Let’s hope no one gets fired over this.

Rule of law

The European Commission has published its 2021 Rule of Law: EU report, with a Communication looking at the situation in the EU as a whole and dedicated country chapters on each Member State. According to the press release:

“Overall, the report shows many positive developments in Member States, including where challenges identified in the 2020 report are being addressed. However, concerns remain and in certain Member States these have increased, for instance when it comes to the independence of the judiciary and the situation in the media. The report also underlines the strong resilience of national systems during the COVID-19 pandemic. This pandemic also illustrated the importance of the ability to maintain a system of checks and balances, upholding the rule of law.”

See also: The IBA podcast, Protecting the rule of law in the EU

Youth Justice

The Youth Justice System’s Response to the COVID-19 Pandemic: Literature Review aims to provide a comprehensive overview of the existing policy, practice and research literature about the impacts of COVID-19 on the youth justice system. The review was produced by the Alliance for Youth Justice, as part of a series of papers that will be published over the life of The Youth Justice System’s Response to the COVID-19 Pandemic research project, delivered in partnership with the Manchester Centre for Youth Studies at the Manchester Metropolitan University.

Legal history

In Confronting the Yorke-Talbot Slavery Opinion and its legacy within English law, Nicholas Leah, a legal historian and future pupil barrister at 3 Hare Court Chambers, discusses a problematic aspect of legal history which prompted the members of Gatehouse Chambers to change its name, on moving to a new location, from Hardwicke Chambers, after the 18th century Lord Chancellor who was one of the two authors of the Opinion in question. Leah writes:

“One judge in particular, Lord Hardwicke, played a central role in the development of slavery within English law. As the co-author of the Yorke-Talbot Opinion, he put his name to a document that not only became a primary source cited by slave owners in justifying the legal basis of slavery, but also contributed to a significant expansion in the slave trade.”

Dates and Deadlines

Term dates

Trinity term ends on Friday 30 July 2021.

During the long vacation, we will not be publishing Weekly Notes, but there will be other posts on this blog, including commentary and reviews. Continue to watch this space.

Michaelmas Term begins Friday 1 October and runs to Tuesday 21 December 2021. For more information, see the Judiciary website: Term Dates

And finally…

Tweet of the week

takes a constructive approach to something only the swivel-eyed anti-vaxxers seem to be talking about:

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.