Weekly Notes: legal news from ICLR, 27 April 2020

Our roundup resumes after the short Easter vacation, with a fresh collection of Covid-19 related guidance and commentary, and legal thoughts from at home and abroad.

Empty courtroom: Court of Justice of the European Union (main chamber) in Luxembourg.

Courts

ECJ to resume hearings

The Court of Justice of the European Union, which since 16 March 2020 has adopted a modus operandi based on the widespread working from home, has issued a press release explaining how hearings in the court at Luxembourg will resume next month. While teleworking from home will continue,

“if conditions allow, it has been decided that hearings may once again be held during the period from 25 May to 15 July 2020.

This resumption of hearings will be accompanied by the introduction of hygiene and social distancing protocols to ensure that the health of everyone involved in the organisation and conduct of hearings is protected. In particular, the representatives of the parties concerned will receive detailed explanations from the registries of the two Courts.

The Court is thus adapting with care to developments relating to the coronavirus pandemic. With the anticipated resumption of hearings, it is taking the necessary steps to ensure full continuity in the public service offered to European litigants, whilst protecting its staff and contributing to the public health objectives of the fight against the pandemic.”

An earlier email circular from the same press office was signed off in mordantly playful style:

“This week’s quote in times of pandemic comes from Voltaire, I’m almost certain that he was not referring to our Advocates General.

Opinions have caused more ills than the plague or earthquakes on this little globe of ours.’

Have a good and safe weekend,

Jacques René Zammit, Press Officer, Ireland, Malta & UK Section”

Judiciary

European responses

The Council of Europe has a special Covid-19 page on Management of the judiciary — compilation of comments and comments by country. The comments come from court officials and the countries covered do not currently include the UK, which is disappointing. But it’s interesting to find out what’s happening elsewhere.

In Belgium for example, while they have kept some courts open,

“Le télétravail doit être favorisé au maximum et seuls les commerces de premières nécessités seront ouverts. Le respect de la distanciation sociale doit être respectée quand on ne peut avoir recours au télétravail.”

In Bulgaria, however,

“due to a lack of procedures thereof and the accompanying technical infrastructure, online hearings are held rarely and mostly with regard to imposing measures on suspected persons in the framework of ongoing investigations where the conducting of online hearings through software such as Skype can easily be arranged between judges and prosecutors.”

In Norway there has been a relaxation of certain procedural requirements for sealing of court orders:

“legislation has been temporarily changed to allow decisions to be made without physical signatures from all judges. Only the presiding judge has to sign, and the signature may be scanned and sent to the court for registration electronically along with a confirmation from the presiding judge that the other judges have accepted the final wording of the decision”.

In Poland, temporary changes to criminal procedure, while leaving rights of defendants unchanged, have made changes in relation to certain types of evidence:

“The introduction of a special arrangement to allow the immediate transfer of seized objects for medical purposes, if relevant. It is mainly the smuggled alcohol that was seized in the course of criminal proceedings and which we can immediately transfer to medical purposes related to the epidemic. To this end, we do not have to wait until the end of criminal proceedings.”

And in Turkey they have not forgotten the potential effect on judicial promotion. Under the temporary measures:

“All the time limits to take actions before the courts and the time limits in alternative dispute resolutions will be suspended until the end of the April. Suspension period of cases will not have negative effect on the promotion of judges and prosecutors.”

The Council of Bars and Law Societies of Europe (CCBE) has also published its own survey of coronavirus arrangements and their effect on practitioners and access to justice around Europe. Published on 8 April, this does include some responses from the UK jurisdictions.

The European e-Justice site also has a dedicated page relating to Impact of the COVID-19 virus on the justice field which includes a regularly updated Comparative table — Covid Impact on civil judicial cooperation (via download link on the page).

Human Rights

UN policy brief on global Coronavirus response

The United Nations has issued COVID-19 and Human Rights We are all in this together, a policy briefing setting out a global human rights based approach to the pandemic. It sets out “six key human rights messages” according to which states should deal with the crisis and prepare for its aftermath. In essence,

“Human rights are key in shaping the pandemic response, both for the public health emergency and the broader impact on people’s lives and livelihoods. Human rights put people centre-stage. Responses that are shaped by and respect human rights result in better outcomes in beating the pandemic, ensuring healthcare for everyone and preserving human dignity. But they also focus our attention on who is suffering most, why, and what can be done about it. They prepare the ground now for emerging from this crisis with more equitable and sustainable societies, development and peace.”

Derogation warning

The Council of Europe has issued guidance to member states contemplating derogation from the European Convention of Human Rights during the coronavirus pandemic: Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis: A Toolkit for Member States (SG/Inf(2020)11).

Derogation is permitted in certain circumstances under Article 15:

“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”

There is a post about this on the UK Human Rights Blog by Nicholas Clapham, Derogation in the time of Coronavirus

Crime

Cardinal Pell: reversal of injustice?

The decision of the High Court of Australia (the nation’s apex court) to allow an appeal against his conviction in Pell v The Queen [2020] HCA 12 has been much discussed. The High Court reversed the decision of the Supreme Court of Victoria, Court of Appeal who, by a majority of two to one, had dismissed Cardinal George Pell’s appeal against his conviction for five historic sexual offences against a minor. The High Court found that for all five charges, there were many improbabilities that had not been fully considered by the jury, amounting to “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.

The Secret Barrister has a Guest post by Edward Henry QC: Reflections on the case of Cardinal Pell, in which he “considers that cases involving historic allegations of sexual abuse can present a real danger of injustice, which the [Court of Appeal, Criminal Division (of England and Wales)] too often seems to ignore. The approach of the HCA is one the CACD should adopt in making an assessment of whether a conviction is ‘unsafe’.”

Civil litigation

Update on ‘whiplash’ reforms

The government has decided to delay its planned implementation of its programme of reform to so-called “whiplash” personal injury damages claims, in view of the pandemic. They were to have been implemented in August 2020 but now they will have to wait till April 2021, the Lord Chancellor Robert Buckland announced last week. He explained

“Under the Programme, we will increase the small claims track limit for road traffic accident related personal injury claims to £5,000; as well as introduce a fixed tariff of damages for pain, suffering and loss of amenity for whiplash injuries, and a ban on the making or accepting of offers to settle a whiplash claim without a medical report.” …

“However, it is apparent that the current Covid-19 pandemic has had an unprecedented impact on the medical, legal and insurance sectors. While the whiplash reform measures remain important, the government is committed to acting to ease the disruption and pressures caused by the Covid-19 outbreak where it can.”

Brexit

Fisheries Bill

One of the themes of Brexit was the idea of taking back control of the UK’s waters and the fish that swim within them. That meant not being bound by the EU’s Common Fisheries Policy which has never seemed to work very satisfactorily. The idea of fish being British may seem rather absurd, but something needs to be done to regulate the activity of grabbing them out of the water, one way of another, and selling them into the human food distribution system.

The Fisheries Bill 2020 is currently awaiting the report stage in the House of Lords. Rafe Jennings discusses the Bill and its various purposes on the UK Human Rights Blog: Fisheries Bill 2020: What Does it have in Stock?

In an earlier post, Jennings also discussed the Agriculture Bill: “The chickens will win every time”. He says

“It shows ambition from the government to develop a post-Brexit agriculture policy with laudable commitments to harnessing the power of farmers to help address the climate crisis, and helps to address issues such as food security. Along with the Environment Bill, discussed here, it constitutes some of the core legislation aimed at achieving the government’s Net Zero by 2050 goal.”

Media law

Markle v Associated Newspapers

The highest profile media case heard last week was Markle v Associated Newspapers, before Warby J sitting remotely in the Queen’s Bench Division but as a judge of the Chancery Division (because the case involves an intellectual property claim). It was live-tweeted by Joshua Rozenberg, who took advantage of the access arrangements provided for both reporters and (unusually it seems) the public in the civil jurisdictions of the High Court, enabling people to watch remote hearings conducted on platforms such as Microsoft Teams (as this one was), Skype for Business, and Zoom. Unfortunately, the case attracted so much interest that not everyone could be accommodated, even virtually. Perhaps in such cases we will need a virtual overflow room, as used to be provided (with videolink) for physical courts when attendance demanded. At least the judgment, which the judge reserved, will be published for all to read, should they wish, even the press, before themselves passing judgment on the case.

The background story, including links to the parties’ skeleton arguments, can be found on the Byline Investigates website. (Essentially, Meghan Markle, aka the Duchess of Sussex, is suing Associated Newspapers, the publishers of the Mail On Sunday and Mail Online, over an article which reproduced parts of a handwritten letter she sent to her father, Thomas Markle, in August 2018. Associated Newspapers were trying to strike out parts of the claim.)

There is also coverage in the Press Gazette.

Riley v Murray

Another interesting media case was Riley v Murray [2020] EWHC 997 (QB), in which Nicklin J handed down his judgment on meaning on 24 April, following a determination on the papers. (Written submissions are usefully posted alongside the judgment on the Judiciary website. Another interesting thing is that, so far as we are aware, it is the first published judgment to contain screenshots of tweets.)

According to the note of the case in Inforrm’s Law and Media Roundup,

“Rachel Riley, the presenter of Countdown, has won the first round in a High Court libel claim over a tweet sent by a former senior aide to Jeremy Corbyn. Riley is suing Laura Murray over a tweet posted a short time after the former Labour leader was hit by eggs thrown by a Brexit supporter during a visit to Finsbury Park mosque on 3 March 2019. Nicklin J ruled that the meaning of Murray’s tweet was that Riley ‘had publicly stated in a tweet that he [Mr Corbyn] deserved to be violently attacked’. He also ruled that the part of Murray’s tweet which said Riley was ‘as dangerous as she is stupid’ was an expression of opinion, which meant that Riley had ‘shown herself to be a dangerous and stupid person who risked inciting unlawful violence’.”

The case was an example of an increasingly common practice in defamation cases, of holding a preliminary meaning hearing with a view to clarifying issues and saving cost down the road. Discussing this development, Helena Shipman on Inforrm’s blog asks: Libel: Are meaning hearings the new norm?

Coronavirus: new guidance and commentary

Constitutional law

There continue to be plenty of commentary and discussion on the legality of the lockdown and the various coronavirus regulations which control people’s movements, including:

On the UK Human Rights Blog,

On the Law and Policy Blog, by David Allen Green:

Crime

The jury’s still out… There have been suggestions that, to preserve personal distancing within a courtroom, we might resume trial by jury with a slimmed down number, such as the seven jurors permitted (except for treason or murder) under the Administration of Justice (Emergency Provisions) Act 1939 during World War II. But what if we dispensed with the jury altogether, at least at the option of the defendant? That is the suggestion made by Geoffrey Robertson QC in The Guardian today: Coronavirus has stopped trials by jury, and that’s not necessarily a bad thing. The practice is adopted in most states in Australia and in exceptional cases (eg where there is a threat of jury tampering) here; and it would avoid the delays inherent in waiting for full jury trials to become available again.

Trials will eventually resume, and the question then arises as to how they are to be managed. The chair of the Criminal Bar Association, Caroline Goodwin QC, addressed this is a recent statement: Eventual Reopening Crown Court Buildings for Live in Situ Jury Trials

The question of whether or not we can or should have remote hearings specifically designed for jury trials in any shape or form, is simply a distraction and specifically remote or virtual jury trials are just not envisaged by the Covid-19 regulations. The whole focus of collective strategy is and has to be about the resumption of live, in court, jury trials but only when safe to do so.

And when that happens, the system must be properly funded to cope with the existing as well as additional backlog:

“This latest pandemic serves as a painful reminder, that we must as a priority address funding to ensure the courts reopen, fully and safely, thus reversing fully the cuts to court sitting days that have, without question, exacerbated the extra delays building up since the pandemic commenced and trials suspended.”

Domestic abuse

Meanwhile, the movement restrictions imposed under the coronavirus regulations are continuing to add to the risk of domestic abuse and on 11 April the Home Secretary, Priti Patel MP, announced a public awareness raising campaign to highlight that if anyone is at risk of, or experiencing domestic abuse, help is still available.

“The campaign, under the hashtag #YouAreNotAlone, will aim to reassure those affected by domestic abuse that support services remain available during this difficult time.

It will encourage members of the general public to show their solidarity and support for those who may be suffering, by sharing government digital content or a photo of a heart on their palm, and asking others to do the same, to show victims that they are not alone and to convey to perpetrators that domestic abuse is unacceptable in any circumstances.

The campaign will be publicising support available including the freephone, 24 hour National Domestic Abuse Helpline number — 0808 2000 247 — run by Refuge, and www.nationaldahelpline.org.uk.

Data Protection

The Panopticon blog, Coronavirus: A Regulatory Update collects recently published official guidance and notes that “one of the areas of real interest and discussion is on the use of personal data for contact tracing products, with assorted privacy impact concerns”.

The Biometrics Commissioner issued a statement on the use of symptom tracking applications, digital contact tracing applications and digital immunity certificates.

Employment

Two posts on the UK Labour Law blog discuss the rights of health workers.

Human Rights

Is protesting during the pandemic an ‘essential’ right that should be protected? asks Maria O’Sullivan on Inforrm’s Blog. The post relates to Australia which unusually has no charter or bill of human rights expressly protecting freedom of speech and assembly, but the need to balance such a right against the restrictions justified for the protection of public health is a universal theme.

Meanwhile, in European Court of Human Rights to Consider Impact of Covid-19 on the UK Human Rights Blog Alex Ewing discusses acase involving the UK Government concerning the impact of Covid-19 on conditions of detention in prison. The case, Hafeez v the United Kingdom (application no. 14198/20) is currently at the communication stage.

Immigration

Free Movement has a comment piece by Zoe Gardner, Policy Adviser at JCWI, who says: if MPs won’t halt Right to Rent discrimination, the Supreme Court must. She sets the discriminatory effect of Right to Rent legislation recently against the Windrush Lessons Learned report and considers Parliament’s failure to mend the situation.

Legal profession

The Inns of Court issued a joint press release earlier in the month addressing concerns about the impact of coronavirus restrictions on barristers and chambers:

“The Inns of Court are conscious of the predicament in which many members of the Bar have been placed as a result of the current COVID-19 pandemic, and are working urgently on a package of measures to assist those most in need. These include:

(a) Participation in, and an immediate contribution towards, an emergency fund that is imminently being launched by the Barristers’ Benevolent Association to distribute funds to barristers in urgent need; and

(b) Hardship funds provided by each Inn, designed primarily to assist pupils and other junior barristers who are not eligible for either the Government assistance for the self-employed or for help from the BBA.

In addition, the Inns are taking measures to relieve hardship in relation to the rental obligations of Chambers on each Inn’s estate.”

As for solicitors’ firms, Richard Moorhead on his Lawyer Watch blog had this to say: Big Firms Should Follow Liverpool, Not Tottenham.

He recommends that “Those firms that are yet to decide what to do about furlough might take a leaf out of Liverpool’s, rather than Tottenham’s, book.” Apparently Liverpool Football Club has reversed its initial decision to put many of its lower paid, non-playing, staff on government funded furlough, but Tottenham FC is one of a number of clubs who still plan to do so. Big firms have the clout to hang on to their teams, but may be tempted by the opportunity to shave costs and maximise partner pay.

“Apart from anything else, they will want to protect their brand and avoid the negative publicity and ill feeling that either of these measures might provoke.”

Media and (mis)information

A new fact-checking site called Infotagion has been created just to deal with the huge number of fake and misleading claims about Covid-19 being shared on social media. Since launching on 30 March 2020, Infotagion has published 50 factchecks: on fake or unconfirmed treatments ranging from onion poultices to exposure to malaria; on fake public policies, such as helicopters spraying pesticides at night over the UK or ambulance services refusing to take 999 calls; and on fictitious origin stories, for example accusing the US military or Bill Gates of creating the virus.

The site was created after Damian Collins, MP for Folkestone and Hythe, and former Chair of the House of Commons Digital, Culture, Media and Sport Select Committee, joined forces with the team at Iconic Labs, as Pierre Andrews explains in an LSE Media Policy Project blog post, reposted on Inforrm’s blog, Fact checking in the time of COVID-19:

“Whilst Infotagion’s main aim is to counter in real-time potentially harmful stories, addressing the media consumption challenges described above, it’s also a public record of COVID-19 related content being viewed and shared — potentially helping to inform both future research and public policy.”

See also:

Prisons

The government announced that they were expanding the prison estate to protect the NHS from coronavirus risk. According to the announcement from the Ministry of Justice,

“Across the estate Prisons are moving towards single-cell accommodation, as much as possible, to limit the spread of infection and the number of deaths.

Today’s action marks the start of work at six priority jails over the coming weeks and, combined with the recently announced early release of low-risk offenders, it will increase space in prisons and help reduce the spread of Coronavirus. …

The first wave of sites have been chosen because they have the highest number of shared cells, lack in-cell sanitation and house high numbers of vulnerable prisoners.”

The Parole Board issued a clarification in respect of the news that some low risk prisoners would be released early to reduce the risk of contagion in overcrowded prisons:

“Prisoners whose release is a Parole Board decision are not eligible for this emergency scheme as this new scheme is specifically designed for low risk individuals nearing the end of their automatic release point.

The Parole Board is responsible for carrying out risk assessments on prisoners to determine whether they can be safely released into the community. This role has not changed, and the Parole Board will continue to determine if someone is safe to release, and are already in the process of seeking to review all cases via remote telephone or video hearings or an intensive paper review.”

Victim statements

In an earlier announcement, the Parole Board also explained how they would now deal with victim’s statements, normally made in person at a parole hearing.

“We only have a small number of cases where the victim was due to attend a parole hearing to read out their victim personal statement (VPS), or where the victim had asked for the statement to be read out by someone else on their behalf. In order to ensure that the victim’s wishes are respected we are making arrangements for the victim (or other person) to read out the VPS via a Skype meeting to the parole panel. We are seeking the victim’s preference on this.”

Other stuff

Television

An ITV miniseries called Quiz based on a true scandal, in which there were courtroom scenes, awoke the indignant air-gavelling pedantry of a number of lawyers on Twitter, many of whose complaints were eloquently itemised by The Secret Barrister in an indictment (sorry blog post) entitled Does it matter that Quiz got the law so hopelessly wrong? It includes a summary of the story for anyone who didn’t watch the programme (which is still available on catchup). Many of the errors are what you might call the usual suspects, though some were pretty egregious (a criminal court witness summons referring to the “plaintiff” for example).

The more serious point is that, in a desert of public legal information, when even the press don’t always get the details right about the law and the justice system, there is a risk that the public, including future litigants, get a wholly distorted view of the justice system from the entertainment media, and for all they might appreciate artistic licence, it may still be the only view they get.

Books

Spun out of what began as a thread of advice on Twitter, solicitor Andrew King’s The Virtual Workspace: 50 Tips for Effective Video Conferencing is now a handy downloadable ebook (Kindle) which is FREE until Friday and then will be priced at £3.95, with all profits going to NHS Charities Together. The paperback edition will be available from Amazon later this week.

Last week we reposted a piece by Elanor Dymott on how the example of Charles Dickens inspired her journey from law reporter to novelist: Dickens Did It First: Writing and the Law

And finally…

Tweet of the week

Recalls a bright bridal day a year ago, for ICLR blog contributor David Burrows and his Regency ringletted wife Lucie,

And here is his charming blog post.

That’s it for this week. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived. And stay safe!

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.