Weekly Notes: legal news from ICLR, 27 January 2020
This week’s roundup of legal news and commentary includes quite a lot about transparency, open justice and closed courts, as well as crimes at home and abroad and the harnessing of technology to fight it. But first we would like to wish all our readers a very healthy, happy and prosperous Lunar New Year (Gong Hei Fat Choy!)
This Doesn’t Look Like Justice
That’s the title of a report by the Western Circuit, led by Kate Brunner QC, working with Anna Midgley and Holly Rust, on the consequences of closed courtrooms. The report focuses on the effects of reducing the sitting days of judges despite increasing workload, leading to delayed and often denied justice.
“Across the Western Circuit, as in other parts of the country, Crown Courts are lying empty while witnesses wait anxious months to give evidence, and defendants wait months for their trials to be heard.”
The report looks at delays, ineffective trials, trials being moved to another court or interrupted, and other problems. It notes that:
“A remarkable 17% of trials were ineffective in the last statistics (2019 Q3 June-September 2019), the highest percentage since those records began in 2007. That means, in almost 1 in 5 trials, the witnesses, defendants, and barristers were told on the day that the trial was meant to start that it had to be postponed to another day — probably months away.9 The pressures on small court centres mean that they are listing more cases than they can deal with, in the hope that some of the cases will end in guilty pleas. Typically, the court will list one trial as a fixture, and another trial as a ‘backer’ or ‘floating trial’, which will only be reached if the first trial does not take place. When that doesn’t happen, the second trial is adjourned, to be relisted months in the future.”
Researchers followed one particular court — Gloucester Crown Court — for a period of four weeks, recording what sittings took place and how much was done. Of the two courtroom available, often only one could be used, because there were insufficient sitting days and resources to use the other. The problems were not locally confined but applied across the country.
“Analysis by the twitter feed ‘Idle Courts’ @CourtsIdle shows that, at the time of this study, on 11 November 2019, 21% of all courtrooms in Crown courts across the country were closed for business (99 of 470). In January 2020 the percentage of closed courtrooms has increased to 27%.”
Open justice and secret trials
The European Court of Human Rights has confirmed that holding part of a murder trial behind closed doors does not violate the right to a fair trial. In Yam v United Kingdom (Application no. 31295/11) the court held that there had been no violation of the right to a fair trial, under article 6 of the Human Rights Convention, in the case of Wang Yam in respect of the exclusion of press and public from parts of his trial for murder in 2008. The court also ruled that the UK had not failed to comply with its obligations under article 34 (right to individual petition) of the European Convention and declared other complaints inadmissible.
Writing in The Guardian, Duncan Campbell and Richard Norton-Taylor explain:
Wang Yam, now 58, was charged with the murder of the 86-year-old writer Alan Chappelow at the latter’s home in Hampstead, north London in 2006. At his trial in 2008 the judge, in an unprecedented move in an English court, ordered that his evidence be heard behind closed doors in the interest of national security. After two trials he was convicted of murder and mail theft by a majority verdict and jailed for life.
Wang Yam claimed that his right to a fair trial, a central principle upheld by the European convention on human rights, was denied because of the evidence heard in camera. He also said the UK breached the convention by refusing to allow the European court of human rights judges to have sight of his defence case.
The case has already been subject to a string of earlier judgments, including an interlocutory appeal against the trial judge, Mr Justice Ouseley’s original order (R v Yam (Wang)  EWCA Crim 269); an appeal against his conviction (R v Yam (Wang) (No 2)  EWCA Crim 2072); and a further appeal, on a reference by the Criminal Cases Review Commission (“CCRC”), based on fresh evidence (R v Yam (Wang) (No 3)  EWCA Crim 1414). All those appeals were dismissed.
The present application followed the rejection by the UK Supreme Court (affirming the decision of the Divisional Court) of Yam’s complaint that the judge’s refusal to allow him to disclose his defence evidence to the Strasbourg court, in support of an existing complaint based on article 6, was a breach of article 34: see R (Yam) v Central Criminal Court  UKSC 76;  AC 771. The judgment of the Strasbourg court therefore covers both the article 6 and article 34 aspects.
Transparency and Open Justice Conference 2020
This was the title and theme of the Leicester and Leicestershire Family Justice Board’s annual conference held on Friday 24 January at Leicester City Hall, opened by Judge Jane George, Designated Family Judge for Leicester.
The keynote address was given by Mr Justice Keehan, Family Liaison Judge for the Midlands Circuit, who described the efforts of the Public Law Working Group to achieve reform to the way child protection cases progress through the family justice system.
Among the day’s sessions were
- a description by Sarbjit Athwal (founder) and Dr Clive Driscoll (deputy chair) of the work of True Honour, a charity that spreads awareness of so-called “honour-based violence” (HBV) and suppports victims of it or of forced marriage or female genital mutilation (FGM).
- A workshop by Dr Julie Doughty on parental alienation based on the main findings of her Cafcass Cymru-commissioned research review on the topic.
- A workshop by Joanna Pearse describing Functional Family Therapy, a system of therapeutic intervention designed for families on the edge of care.
- A workshop by James Evans on Our Family Wizard, a smartphone app designed to facilitate better co-parenting arrangements between separated parents, which has found a wide audience in the USA and is becoming increasingly popular in the UK.
- A session by Lucy Reed (barrister) and Louise Tickle (journalist) about the work of the Transparency Project, and about the challenges and benefits of transparency in the family courts.
You can read a full report of the conference on the LLFJB website, written by Laura Vickers.
Police to go ahead with facial recognition in London
Despite the objections of privacy campaigners, a select committee and the data protection regulator, as well as the criticism of an independent report, the Metropolitan Police have nevertheless decided to proceed with the use of automated facial recognition (AFR) technology in the capital. In an announcement dated 24 January 2020, the Met says:
The use of live facial recognition technology will be intelligence-led and deployed to specific locations in London. This will help tackle serious crime, including serious violence, gun and knife crime, child sexual exploitation and help protect the vulnerable. The technology, from NEC, provides police officers with an additional tool to assist them in doing what officers have always done — to try to locate and arrest wanted people.
This is not a case of technology taking over from traditional policing; this is a system which simply gives police officers a ‘prompt’, suggesting “that person over there may be the person you’re looking for”, it is always the decision of an officer whether or not to engage with someone.
The use of the biometric technology, which has been widely criticised for problems with algorithmic bias and inaccuracy, was challenged in the High Court in a case last year. In R (Bridges) v Chief Constable of South Wales Police (Information Commissioner intervening)  EWHC 2341 (Admin);  WLR (D) 496 the Divisional Court rejected a claim for judicial review by Cardiff-based civil liberties campaigner Edward Bridges challenging the lawfulness of the use of AFR by South Wales Police under data protection and human rights legislation. However, an appeal is said to be pending.
London has a network of 420,000 CCTV cameras and is apparently the world’s second most monitored city after Beijing. It is not just the police who are using AFR: last year it emerged that private developers had been using it in public spaces around King’s Cross (where Google UK has its headquarters), without the public’s knowledge, in a case now being investigated by the Information Commissioner’s Office (ICO).
In a report published last July the House of Commons Science and Technology select committee urged the government to impose a moratorium on further AFR trials until a proper legislative framework and better oversight and evaluation systems had been introduced.
The human rights organisation Liberty is opposed to the use of AFR which it describes as “dangerously intrusive and discriminatory” and urges members of the public to sign a petition for it to be banned.
Further reading: Independent Report on the London Metropolitan Police Service’s Trial of Life Facial Recognition Technology, by Professor Peter Fussey and Dr Daragh Murray (University of Essex Human Rights Centre)
Statistics show alarming drop in charges
The latest set of crime figures from the Home Office, covering the year up to September 2019, show a drastic fall in the percentage of cases reported to police actually resulting in a charge being laid against a suspect. This has fallen from 1 in 7 in 2015 to about 1 in 14 last year.
The figures also show that knife crime recorded by police rose by 7% to an all-time high, fraud increased by 9% and robberies increased by 12%, but homicides fell by 6% and fatal stabbings fell 20%.
Office for National Statistics, Crime in England and Wales: year ending September 2019
Home Office, Police recorded crime and outcomes open data tables
Tougher sentencing regime
Honouring one of the pledges in their election manifesto, the government last week announced that it was introducing “Tougher sentences, an end to early release and a review of the management of convicted terrorists announced to strengthen the UK’s response to terrorism”. In fact it is less about making sentences tougher and more about making prisoners serve more of the existing ones, by reducing the scope for early release. But the effect is probably still much the same, ie to make the government look as though they are being tough (while not actually providing the courts with the resources needed to put people behind bars in the first place — see “Courts” above). The use of polygraph (lie detector) tests as part of the probation monitoring and the assessment of rehabilitation is controversial (see Guardian,
Polygraph’s revival may be about truth rather than lies).
According to the Home Office / MoJ announcement,
the new Counter-Terrorism Bill, to be introduced in the first 100 days of this government, will force dangerous terrorist offenders who receive extended determinate sentences to serve the whole time behind bars and ensure those convicted of serious offences such as preparing acts of terrorism or directing a terrorist organisation spend a mandatory minimum of 14 years in prison.
It will also overhaul the terrorist licensing regime, doubling the number of specialist counter-terrorism probation officers and introducing measures such as polygraph testing. It will increase the number of places available in probation hostels so that authorities can keep closer tabs on terrorists in the weeks after they are released from prison.
What we need isn’t tougher justice; it’s smarter justice. However long you put someone in prison, they have to be let out some time. And when they are, they need to be safe in society. If that can happen, why not make it happen sooner, rather than later? Rehabilitation, not retribution, is the answer.
The International Court of Justice in The Hague has ordered the state of Myanmar to “take all measures in its power” to ensure that military and irregular army units do not commit any further acts against the Rohingya people in Rakhine state that would contravene the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, and to take “effective measures” to protect evidence relating to earlier alleged violations.
Under the court’s ruling dated 23 January 2020 Myanmar is also required to submit interim reports on steps taken to ensure the safety of the Rohingya people until the court’s final decision in the case. Military operations in Rakhine are alleged to have killed thousands, led to villages being torched and caused the flight of almost three quarters of a millions refugees into the neighbouring state of Bangladesh.
Myanmar’s head of state, the Nobel peace prize laureate Aung Suu Kyi, has appeared before the ICJ to answer the case against her country. She acknowledged that war crimes may have been committed during the army’s crackdown on unrest in Rakhine (in what Myanmar characterises as “clearance operations”) but argued that they did not amount to genocide and should be investigated and prosecuted through the country’s own military justice system. That suggestion appears not to have found favour with the court. The interim ruling provides for a full hearing now to proceed on the allegations against Myanmar under the Genocide Convention. (See also: ICJ press release)
The application for provisional measures was brought to the ICJ by the Gambia (seeWeekly Notes, 9 December 2019)
and is supported by the Organisation of Islamic Co-operation, the Netherlands, and Canada.
Under article II of the Convention:
“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
Holocaust Memorial Day
We are reminded of the horrific events prompting the drafting of the Genocide Convention in the years after World War II as we mark the 75th anniversary of the liberation of Auschwitz in 1945 and Holocaust Memorial Day, 27 January 2020.
Among other commentary and discussion, may we strongly urge you to listen to the latest edition of the Better Human podcast, which features a discussion between two very eminent human rights lawyers, Philippe Sands QC (Matrix chambers) and Adam Wagner (Doughty Street chambers), about Sands’s book, East West Street and his subsequent podcast and book, The Rat Line, about the human and legal history and consequences of the holocaust. It also emerges from that discussion that Sands, who specialises in international cases, is currently acting as counsel for the Gambia in the ICJ case against Myanmar.
LSB calls for evidence of ongoing competence
(Not, we hasten to add, of the Legal Services Board itself. Perish the thought.) The regulator of legal regulators, or uber-regulator as it is sometimes called, has launched a call for evidence on how legal regulators ensure the professionals they regulate remain competent throughout their careers.
“The LSB wants to hear from people and organisations both within and beyond the legal services sector with any relevant information on existing competence assurance practices and whether these practices protect the public and promote consumer interests. The insights will help guide the LSB’s thinking on whether a different approach is needed.”
The call for evidence opens on 21 January 2020. It will run for 16 weeks and closes on 15 May 2020. The LSB is asking respondents to consider four themes:
• Defining competence and competence assurance
• Consumer expectations of competence
• Competence assurance in the legal services sector
• Competence assurance in other sectors
The LSB says it “plans to engage widely with stakeholders during the call for evidence and is looking forward to meeting with interested parties in the coming months”. Respondents can submit information via email or on the LSB website.
Dates and Deadlines
UK to leave EU — 11pm GMT, 31 January 2020
Following the passing of the European Union (Withdrawal Agreement) Act 2020 on 23 January, and a formal announcement made in the Commons by deputy speaker Nigel Evans, the United Kingdom will be ending almost half a century’s membership of the European Union, which it first joined on 1 January 1973, on 31 January 2020.
For the Europeans, the exit will happen at midnight, Brussels time. For the British, it will happen at a less dramatic 11pm, London time.
Academy SW seminar: A story of crime and justice: how to engage effectively with the media
Burges Salmon LLP, Bristol — Tuesday, 25 February 2020, 5–7pm
In this free seminar organised by the Academy for Social Justice, Kieran McCartan, Professor of Criminology will be in conversation with Penelope Gibbs of Transform Justice and former BBC journalist Philippa Budgen about how the public conversation around crime and justice can be reframed and more nuanced.
Booking details via Eventbrite.
Beyond the knife — Care before criminalisation
Conway Hall, Holborn, 25 Red Lion Sq, 6 February 2020, 6 to 8 pm
A symposium on knife crime organised by 25 Bedford Row chambers. Speakers include David Lammy MP. Email events@25BedfordRow for details.
The Great Legal Bake
10th — 14th February
The London Legal Support Trust (LLST) are once again calling out for star bakers to make desserts and not legal aid deserts. Taking part is simple — all you need to do is get a team of bakers together and sell your fabulous creations in the office (or to family and friends). If you love baking, or eating cake, sign up today.
Tweet of the Week
is from Rouen, in France, where lawyers have taken part in a striking dance craze:
If that doesn’t cheer you up, nothing will. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived.
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.