Weekly Notes: legal news from ICLR, 27 March 2023

This week’s roundup of legal news includes legal ethics, political dishonesty, public order, court reform and more. Plus recent case law and commentary.

11 min readMar 29, 2023

Parliament

Committee of Privileges

On Wednesday 22 March the former Prime Minister, Boris Johnson MP, appeared before the House of Commons Committee of Privileges in a Matter Referred to it on 21 April 2022 (viz, culpably misleading the House of Commons and/or not correcting the record in a timely manner). This concerns his repeated denial of breaches of the covid regulations which he himself had promulgated. Johnson had, at public expense, though at rather more than legal aid rates, sought and obtained legal advice as to how he should defend himself, but did so in person. He had, the previous day, filed his carefully crafted (perhaps not entirely by him) written submissions.

The oral evidence before the committee was not without its entertaining moments, particularly for anyone able to watch on Parliament TV, who may have caught a glimpse of the facial expressions of the well known barrister, Lord Pannick KC, sitting behind and to the left of Johnson, as the latter blustered and barked in response to the probing questions put to him (see image). Diehard fans of Johnson, including two ex-ministers, described the proceeding as a “kangaroo court”, but Johnson himself, when challenged, disavowed the phrase.

Unsurprisingly there has been some commentary on the former Prime Minister’s performance. See, for example, David Allen Green, The Law and Lore Blog:

Legal Profession

King’s Counsel

It was absolutely lovely to see all the new Silks on parade in the sunshine, dressed in their frock coats and full bottomed wigs, amidst the blossoming trees and weathered old stone of the Inns of Court in London. Social media was awash with their justifiably smiling faces, showing off their Letters of Patent and patent leather shoes.

Breaking ranks

But in other respects the Bar is not so happy. Controversy has reared its ugly head after a group of lawyers published a call to action entitled Lawyers Are Responsible, urging colleagues to sign up to a declaration that they will in future refuse to lend their services to (i) supporting new fossil fuel projects; and (ii) action against climate protesters exercising their democratic right of peaceful protest.

Commentators have pointed out that for a barrister to refuse to act in a matter in which they are suitably qualified, available, and would be properly paid, would be a breach of that part of the barristerial Code of Conduct known as the Cab Rank Rule. You can’t pick and choose your clients because that would be to prejudge them. An independent Bar exists to ensure that unsavoury clients are still defended and popular ones are still prosecuted.

A further problem is the tendency of the press and public to associate lawyers with their clients, something some lawyers seem to want to support, yet which makes them an easier target.

There’s clearly a difference between defending someone accused of horrible conduct and thereby ensuring they get a fair trial, and assisting a claimant in pursuing an oppressive legal proceeding which may be technically legal but could still be harmful (such as a SLAPP claim used to silence legitimate scrutiny in the public interest). But on which side of the line falls prosecuting or suing a person for doing something that your conscience tells you should not have been a crime or a cause of action? Should you lend your support to such oppression simply because it is your independent professional role to do so?

The Chair of the Bar Council, Nick Vineall KC responded to the declaration with a statement robustly reaffirming the rule:

“The cab rank rule prevents barristers from refusing work because they disagree with the actions or views of those seeking their services. This does indeed have the result that people to whom a particular lobby object can still get the legal representation of their choice. It also guarantees that people who are accused of offences they did not commit can get legal representation by an advocate of their choice, no matter how appalling the offence with which they are charged.
“The cab rank rule promotes access to justice and promotes the rule of law. It is disappointing that some lawyers apparently wish to remove these rights from people of whom they disapprove.”

Many prominent barristers have also commented on the declaration, via Twitter and elsewhere. It’s clear that particularly among the criminal Bar feelings were even stronger. The Chair of the Criminal Bar Association, Kirsty Brimelow KC in her Monday Message was unequivocal in her support for the rule, and disdain for the motives behind the declaration:

“Practising members of the Criminal Bar prosecute and defend criminal law cases under the extreme pressure of a backlog, foisted on them by years of legal aid and court funding cuts. They see the best and worst of society as they play their essential role in delivering justice, within a legal framework, regardless of the identity or cause of the defendant.
Last week, a “Declaration” was made by a diverse group of students, solicitors, academics, and barristers from various jurisdictions. It states that they will withhold their “services” supporting “new fossil fuel projects” and “action against climate protestors exercising their democratic right of peaceful protest”.
This document quickly saw it trailing a doubling down of commitments to refuse to prosecute protestors.
The most prominent public commentary was by those not qualified to prosecute anyone.
The range of signatories — some retired, some without any rights to appear in any court or to give any legal advice — pulls away the curtain of headlines to reveal a performative, protest document.”

Ouch! But whatever one thinks of the performative posturing of those behind the declaration, there are other commentators, including academics and even some practitioners, who think the Cab Rank Rule is something of a shibboleth, more honoured in the breach, and may even do more harm than good in its stated aim of ensuring access to justice. Such, at any rate, was the finding of a report commissioned ten years ago by the Legal Services Board (though we were sceptical of this at the time), and so appears to think that supremo of legal ethics, Prof Richard Moorhead, on the Lawyer Watch blog, in a post entitled Lights Out at the Rank:

“the cab rank rule acts not to guarantee the rule of law and access to a barrister of one’s choice for all, but as a guarantee for one group. It is, quite literally, one rule for the rich (legal aid lawyers you are the honourable exception). And, any lawyer desirous and capable of competing for an Oligarch’s cash has the perfect cover for it in the Cab Rank Rule; I am obliged to accept instructions. It is a signal of my independence and neutrality in the finest traditions of the rule of the Bar and British justice…..”

He also reposts a comment made at the time of the LSB’s report by a former barristers’ clerk, Jeremy Hopkins (on the Clerkingwell blog): Cab Rank — Who’s rule is it anyway?

Public Order

Anti-social behaviour

The government has decided to have another crack at a crackdown on anti-social behaviour. This was not one of the latest Prime Minister’s five pledges, but it should probably still have been on our bingo cards for 2023 because Labour have made “Law and Order” one of their key commitments. Last month the Shadow Home Secretary, Yvette Cooper MP gave a speech to the Institute for Government declaring that “only Labour is the party of law and order” and setting out their plans to reform policing, including through the introduction of a new “neighbourhood policing guarantee”.

Policing has been under the spotlight this week anyway, with the Baroness Casey Review showing the Metropolitan Police in a very bad light, with accusations of institutional racism, misogyny and homophobia fully supported by evidence, among other widespread failings. Labour has vowed to recruit more officers, but they will need to be better vetted and trained too.

Meanwhile, the announcement of the Tories’ new burst of activity on law and order has come, not from the Home Secretary (still too focused on illegal migration) or the Justice Secretary (still apparently focused on human rights) but rather the Levelling-up Secretary, Michael Gove. His Action plan to crack down on anti-social behaviour includes:

a zero-tolerance approach to all forms of anti-social behaviour.
‘hotspot’ police and enforcement patrols in areas with the highest rates of anti-social behaviour.
a one-stop-shop digital reporting tool for victims and complainants.
a new ‘Immediate Justice’ scheme to deliver swift and visible punishments.
increased penalties on fly-tipping.
more investment in youth services.
a ban on laughing gas.

The ban on laughing gas prompted a certain amount of commentary, both for its ultimate futility and for its apparent pettiness.

There is also a commitment to repeal the antiquated Vagrancy Act 1824, often used to harass the homeless. Instead, the government is committed to spending £2 billion over three years to accelerate efforts to end rough sleeping for good. But the suggestion that beggars might be fined “up to £1,000” seemed to, er, beg the question.

Courts

HMCTS reform

Nick Goodwin, Chief Executive of HM Courts and Tribunals Service, provides an update on the HMCTS Reform project, which since 2016 has been working on modernising and digitising the courts and court processes. A huge amount has been achieved, he says, but there remain challenges; and adjustments have had to be made to prioritise what can be achieved as against what have sometimes turned out to be over-ambitious targets.

“We know that trying to change too much, too quickly has undermined confidence at times. … So we’ve taken stock and looked realistically at what we can achieve and by when. As a result we’ve adjusted certain elements of the reform programme. Our revised schedule minimises overlap and allows more preparation time.”

Other recent items

Closed hearings in the Court of Protection: under-scrutiny?

A recent post on the Transparency Project blog examines the implications of ‘closed’ hearings in the Court of Protection, following the work of the Open Justice Court of Protection Project. Such hearings can be problematic and recent guidance suggests such a procedure should only be used ‘as a matter of last resort’ and for the most compelling reasons. But questions remain about how much independent scrutiny the process should have.

IPSO chief: ‘I would feel like a bit of a muppet’ saying I trust the whole media

Charlotte Dewar, chief executive of press regulator IPSO, appeared alongside Rizwana Hamid, the director of the Muslim Council of Britain’s Centre for Media Monitoring (CMM), at a panel event on “trust, transparency and truth” at the Society of Editors Media Freedom conference in London. The session, moderated by 5 News presenter Claudia-Liza Vanderpuije, was reported by the Press Gazette.

ECJ: Statistics of judicial activity

Marc-André Gaudissart, Deputy Registrar of the Court of Justice of the European Union, provides a brief overview of the main statistical trends in the court’s activity over the past year.

In this context, the next item may be of assistance:

How to read CJEU judgments: deciphering the Kirchberg oracle

Jasper Krommendijk & Frederik Zuiderveen Borgesius, via the EU Law Analysis blog, give some tips to read and interpret such judgments. The blog post is mainly aimed at students who encounter CJEU judgments for the first time. But perhaps the blogs post could also be useful for other readers, such as lawyers from outside the EU, and non-lawyers.

Multi-million investment to turbocharge growth of technology in legal services

The government-backed LawtechUK programme will provide an extra £3 million of government funding to turbocharge the development and use of technology in the legal sector. The Ministry of Justice has announced that the money will go to CodeBase, which is one of the country’s largest incubators, having helped hundreds of start-ups grow and scale up. They will work with Legal Geek which runs events and programmes to connect legal businesses and the technology sector.

“The news is another boost to the UK’s thriving legal services market which is the second largest in the world, employing more than 300,000 people and worth around £25 billion to the economy.”

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

CHILDREN — Orders with respect to children — Jurisdiction: In re T (Children) (Jurisdiction: Matrimonial Proceedings), 17 Mar 2023 [2023] EWCA Civ 285; [2023] WLR(D) 134, CA

COMPULSORY PURCHASE — Inquiry — Costs: Harlow District Council v Powerrapid Ltd, 17 Mar 2023 [2023] EWHC 586 (KB); [2023] WLR(D) 139, KBD

CONTRACT — Construction — Share purchase agreement: Decision Inc Holdings Proprietary Ltd v Garbett, 16 Mar 2023 [2023] EWHC 588 (Ch); [2023] WLR(D) 138, Ch D

CRIME — Sentence — Sexual offences: R v Ahmed (Nazir) (R v Stansfield (David), R v Priestley (Steven), R v W (R), R v Hodgkinson (Peter)), 17 Mar 2023 [2023] EWCA Crim 281; [2023] WLR(D) 131, CA

EQUITY — Fiduciary duty — Breach: Recovery Partners GP Ltd v Rukhadze, 21 Mar 2023 [2023] EWCA Civ 305; [2023] WLR(D) 147, CA

HOUSING — Secure tenancy — Claim for possession: Birmingham City Council v Bravington, 22 Mar 2023 [2023] EWCA Civ 308; [2023] WLR(D) 148, CA

LOCAL GOVERNMENT — Homeless persons — Housing duty: Zaman v Waltham Forest London Borough Council (Uduezue v Bexley London Borough Council), 24 Mar 2023 [2023] EWCA Civ 322; [2023] WLR(D) 144, CA

PLANNING — Development — Planning permission: R (Atwill) v New Forest National Park Authority, 22 Mar 2023 [2023] EWHC 625 (Admin); [2023] WLR(D) 143, KBD

PROCEEDS OF CRIME — Civil recovery — Recovery of assets: R (Fresh View Swift Properties Ltd) v Westminster Magistrates’ Court, 23 Mar 2023 [2023] EWHC 605 (Admin); [2023] WLR(D) 149, KBD

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

UK Supreme Court Blog: Case Preview: JTI Polska Sp. Z o.o. v Marek Jakubowski [2021] EWHC 1465 (Comm), QBD

Local Government Lawyer: Judges allow appeal from residents in out-of-borough accommodation disputes: Zaman v Waltham Forest London Borough Council [2023] EWCA Civ 322; [2023] WLR(D) 144, CA

RPC Perspectives: M&S v Aldi — lookalike claims lit up by design rights: Marks and Spencer PLC v Aldi Stores Limited [2023] EWHC 178 (IPEC), Ch D

Nearly Legal: Time to respond to ‘minded to’ letters, and getting affordability right: Tapper v Royal Borough of Kingston upon Thames (unreported), County Ct

UK Human Rights Blog: 2023: Year of the Nuisance?Jalla v Shell International Trading and Shipping Co Ltd [2021] EWCA Civ 63, CA

Free Movement: “High hurdle” for hotel accommodation challenges?R (MQ) v Secretary of State for the Home Department [2023] EWHC 205 (Admin), QBD

And finally…

Tweet of the week

is a legendary listing for the history books:

Thanks for reading, and thanks for all your toots, tweets, posts and links. Work hard, be kind, take care.

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.