Weekly Notes: legal news from ICLR, 26 October 2020

This week’s roundup of legal news and comment includes sentencing reform, media regulation, hungry children and untaxed taxis.

The Royal Courts of Justice, by Louise McCullough, reproduced with permission and thanks.

Crime

The Sentencing Act 2020 (not yet published) received its Royal Assent on 22 October. Its purpose is primarily to introduce a Sentencing Code, as recommended by the Law Commission. To this end, pre-consolidation amendments were made to legislation to streamline the law in the area being consolidated, via the Sentencing (Pre-consolidation Amendments) Act 2020, which was given Royal Assent on 8 June. The Code will consolidate more than 1,300 pages of legislation scattered about the Statute Book, “slashing the law on sentencing procedure by more than half to ensure greater clarity, reduce the risk of errors and improve the efficiency of sentencing hearings”, according to the government.

For more information see:

The government has announced what it calls a “root and branch” review of the parole system in England and Wales. The review will consider whether the current system is the most effective and efficient one for deciding whether prisoners should continue to be detained, or if some kind of tribunal might do better, and what its powers should be.

According to justice minister Liz Frazer QC:

“Over the last 2 years, our reforms have made the Parole Board’s work more transparent and easier to understand for victims and the wider public. We now have the opportunity to take a more fundamental look at the system to ensure it continues to protect people by releasing offenders only when it is safe to do so and does this in the most effective way.”

The process of increasing transparency and public scrutiny dates back at least as far as January 2018 when a massive public row broke out after the early release of the notorious John Worboys, a London cabbie who had been convicted of rape and a number of sexual offences in 2009 and sentenced to Imprisonment for Public Protection’ (‘IPP) with a minimum term before any possible release of 8 years. The reasons for the Parole Board’s decision were not made public and this only added to the disquiet over the bungled investigation of Worboys’ crimes, which was the subject of test cases brought by survivors being litigated up to the Supreme Court: DSD v Comr of Police of the Metropolis [2018] UKSC 11; [2019] AC 196.

Media regulation

The annual report of the Independent Press Standards Organisation for 2019 has been published. That it should have taken them quite so long to report on last year’s activity is perhaps not entirely uncharacteristic given their response times to complaints, according to the Transparency Project (see 296 days to correct a factual inaccuracy — effective press regulation?) but there is also the magic excuse tree of Covid-19 to rely on, as new chair Lord [Edward] Faulks QC explains in his intro:

“Although this annual report covers 2019, it is difficult to overlook the impact of what was to come next. Abruptly in March 2020, the organisation had to work remotely as social distancing requirements came into force. … IPSO has delivered remarkably well during this period.”

He adds that IPSO has received “a record number of complaints in 2020”. In 2019 IPSO upheld 55 out of 621 complaints investigated for alleged breach of the Editors’ Code, and 207 of them were resolved between the publisher and the complainant without requiring full investigation. The highest number of breaches was found against Reach plc (publishers of the Mirror, Express and Star) with 19, followed by News UK (publishers of the Sun and the Times) with 13.

IPSO has now been going five years. It regulates titles voluntarily —more than 2600 titles have signed up as members. As well as dealing with complaints, IPSO issues guidance and notices to deal with specific situations, such as major incidents, victims of crime, and personal harassment. The Editor’s Code has a separate committee to manage it and make amendments from time to time. But both IPSO and the Editors’ Code are populated by a preponderance of industry insiders, and the whole thing is funded by member subscriptions, all of which compromises its claims to genuine independence. So we must judge it by its actions. Faulks is anxious to stress that “We are not champions of the press. Indeed, IPSO is proud of its independence and is acutely concerned to bring justice to those wronged by press actions.” And he is surely right to draw attention to the lack of regulation for other problematic channels of information, ie social media:

“As the government brings forward proposals for regulation of social media platforms in the Online Harms Bill, there will be a real opportunity to emphasise the importance of IPSO’s robust regulation of newspapers and magazines, both in print and online, as opposed to the unregulated space occupied by social media.”

IPSO made much of the fact that in 2016 it brought in an arbitration service (to avoid litigation claims) and in 2018 made it compulsory for all newspapers: nevertheless, last year, there were only 3 actual claims, one of which was struck out and the other not pursued after a preliminary ruling.

See also:

Data Protection

The Government’s Test and Trace Programme risks the privacy rights of hundreds of thousands (if not millions) of individuals in the UK whose personal data has been or will be processed through the Programme, says the Open Rights Group. After they threatened legal action, the Government was forced to admit that the entire Test & Trace programme has been operating unlawfully since its launch on 28th May 2020.

Open Rights Group (ORG) was forced to take action, they say, because the Information Commissioner’s Office (ICO) is not doing its job. Meanwhile the ICO on their own blog says Engagement key in protecting people’s privacy across the UK during the pandemic, and in an earlier blog post relating specifically to the App development said,

“We have been consulted on the app’s development from the start of the project, working with the Department for Health and Social Care (DHSC) to encourage the necessary consideration of people’s data protection rights.

It has been a positive relationship. We were clear from the outset that our role was to ask questions on how transparency, legality and fairness were built into the project.”

The latest post adds:

“We have enjoyed similar positive engagement in Northern Ireland, Scotland and Wales, where public health is a devolved matter. My offices have been working closely with the devolved administrations and other public bodies since the start of the pandemic to ensure that any COVID-19-related projects adopted a privacy by design approach.”

One group that appears to have suffered a particularly intrusive pandemic lockdown experience is students. Now Wired reports that Universities are using surveillance software to spy on students:

“Locked in their accommodation — some with no means of escape — students are now being monitored, with tracking software keeping tabs on what lectures they attend, what reading materials they download and what books they take out of the library.”

A lot of students relish the independence that comes with leaving home for the first time. They don’t expect to escape parental scrutiny only to find themselves being virtually snooped on by a big brother.

Family Law

The Law Commission is currently consulting on reforms to the law on weddings. The main law which governs marriage is from 1836 and has failed to keep pace with modern life. At present, couples have to make a choice between a religious or a civil ceremony, with no option for a ceremony reflecting other beliefs.

The proposed changes would allow weddings to take place outdoors, for example on beaches, in parks, in private gardens and on the grounds of current wedding venues, and in a greater variety of indoor venues. There would be more flexibility over the form of their wedding ceremonies, less red tape, and scope for non-religious belief organisations to conduct weddings.

The consultation period will run until 3 December 2020. In the meantime, the Law & Religion UK blog has been publishing guest posts from the Weddings Team at the Law Commission, explaining the proposals in more details. See, most recently, Getting Married: A Consultation Paper on Weddings Law #2

Human Rights

The debate over extending Free School Meals, which are available to primary school children of eligible families during termtime, to school holiday periods during the pandemic, has provoked considerable political debate and even antagonism. When, earlier this year, the government proposed that it would be stopping the provision of free school meals in England over the summer holidays, it was met with public outcry, as a recent piece on the UK Human Rights Blog explains. When the government U-turned on the decision it was attributed to a successful online campaign led by footballer Marcus Rashford, (who earlier this month was awarded an MBE in the Queen’s Birthday Honours).

But in the meantime, a judicial review claim had been commenced with Jamie Burton of Doughty Street Chambers and Dan Rosenberg of Simpson Millar acting on behalf of the Good Law Project and Sustain issuing a pre-action protocol to the Secretary of State for Education, Gavin Williamson MP. When the government reversed the decision on free school meals, the legal proceedings were halted and as a result potentially significant legal precedent was lost. The post on the UK Human Rights Blog considers what the human rights case against the government might be, by reference to articles 3, 8 and 14 of the European Convention on Human Rights.

Tax law

Crowdfund crusaders the Good Law Project are claiming a victory in the long-running saga of their attempts, since 1027, to get HMRC’s to assess Uber to Value Added Tax. Despite various setbacks, such as “spending the money we raised in the crowdfunder trying to get a protective costs order and failing” and the fact that “the Court of Appeal refused us permission to bring our judicial review against HMRC”, the GLP says “ultimately we triumphed. Uber’s US accounts now confirm that HMRC has assessed Uber to VAT on fares — both prospectively and retrospectively.” Which, they say, is all they wanted.

Relevant case law: Good Law Project Ltd v HM Revenue and Customs [2019] EWHC 3125 (Admin); [2020] STC 145, QBD (Lieven J)

Fraud

COVID-19 and its effect on the global economy has meant not only that a recession is all but guaranteed for the UK but that it will be worse than that of 2008, says Simon Dennis of SAS UK on Open Access Government. Moreover, while fraud cases in the UK have reduced by 13% in the last year, there is an expectation that, with that impending global recession, “fraud and financial crime will be on the rise again in the coming months”.

He explains how the pandemic has provided new opportunities for fraud, such as the Coronavirus Job Retention Scheme (CJRS) and the Bounce Back Loans scheme (BBLS). “Furthermore, increased online activity at the expense of face-to-face interaction also presents more opportunities for fraudsters to cash in”.

As it happens, both the CJRS and BBLS have been the subject of recent National Audit Office reports, Implementing employment support schemes in response to the COVID-19 pandemic and Investigation into the Bounce Back Loan Scheme.)

The Coronavirus Job Retention Scheme (CJRS) and the Self-Employment Income Support Scheme (SEISS) have cost £52.7bn, says the NAO. HM Revenue & Customs’ (HMRC’s) upper estimate of fraud and error on CJRS to 20 September, based on 5% to 10% fraud and error levels on £39.3 billion of payments, was £3.9bn. The NAO also noted in the BBLS report, that “Government recognises that the decision to provide funds quickly leaves taxpayers exposed to a significant residual fraud risk, even after lenders have implemented mitigation strategies.”

Recent publications

Redress for ‘historical’ child abuse in care: what can Scotland learn from Ireland?

Dr Maeve O’Rourke, on the UK Human Rights Blog, on shortcomings in the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill, and in particular a “waiver” requirement “that a survivor must trade their right to sue the State and any institution that has made ‘fair and meaningful contribution’ to the scheme in exchange for a payment of up to £80,000”.

Still trying to crack the legal racial attainment glass ceiling

Blessing Mukosha Park via Law Careers Net reflects on Black legal history and the Black barristers leading by example, “narrating their stories and creating a record of their lived experiences” and thus “making Black history in real time”. She says:

“It is vital that Black people, who are entering spaces wherein they are an ethnic, social and cultural minority, are able to be as loud and expressive as they want and need to be. This is no less true for the Bar. This is critical if we are to change the legal profession we work in and to communicate the standard to which we want to be treated.”

Ministers must end their attacks on lawyers

More than 800 barristers, solicitors, legal academics and retired judges have lent their support to a letter in The Guardian, calling for the Home Secretary, Priti Patel and the Prime Minister, Boris Johnson to apologise for past remarks and refrain from using hostile language undermining the rule of law. They are accused of displaying hostility and of having endangered the personal safety of lawyers through their abusive attacks on the profession.

The Guardian reported that:

“Earlier this month, at the Conservative party conference, Patel broadened her targets, claiming that among those defending the “indefensible” and “broken” immigration appeals system were “do-gooders, lefty lawyers, the Labour party”.

In his conference speech, Johnson went further, declaring he would prevent “the whole criminal justice system from being hamstrung by what the home secretary would doubtless — and rightly — call the lefty human rights lawyers, and other do-gooders”.

Last week, a man appeared in court charged with carrying out a racist attack on a firm of immigration lawyers in London. Cavan Medlock, 28, from Harrow, faces six charges including preparing an act of terrorism. He has not yet entered a plea.”

Dates and Deadlines

Wednesday Oct 28, 2020 03:00 pm GMT via Zoom

Join Mishcon de Reya’s webinar for an ‘In conversation’ session with Alexandra Mousavizadeh, Partner at Tortoise Media and creator of The Responsibility100 Index and The Global AI Index, and Mishcon’s Head of Reputation Protection and Partner, Emma Woollcott. Chaired by Alexander Rhodes, Head of Mishcon Purpose. They will discuss the gap between what corporates say they are doing and what they are actually doing — and the reputational and other risks flowing from the double sin of greenwashing. Register here.

Middle Temple remote event — Tuesday 17 November 2020 18:00

Host and keynote speaker Caroline Flanagan says the longing for work life balance has no place in an uncertain COVID world. You need to stop dancing around the desire for less work and more life, and hold yourself accountable to committing to your career without dishonouring your personal life. Forget work-life balance, Caroline argues, it’s a work-life contract you need.

Joining details (for Middle Temple members and guests)

Online — 23 to 25 November 2020

The IMPRESS Trust in Journalism Conference returns this November as a three-day event held entirely online. This year’s sessions will cover issues of standards in journalism, tools for high-quality reporting, the challenges of building trust with audiences in the present context, and learn about some of the fantastic efforts being made in the sector and their impact.

Register for free for each day of the conference that you would like to attend.

And finally…

from the Posse List (legal and tech news) has a Hallowe’en look:

Feels like we’ve been playing Track or Trace all year, instead of Trick or Treat. But there’s a good chance we’ll see less of the pumpkin head after the forthcoming US election.

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.

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.