Weekly Notes: legal news from ICLR, 28 November 2022
This week’s roundup of legal news includes constitutional law, the judiciary, and crime, as well as recent case law and commentary.
Scotland exit ref reserved
The UK Supreme Court ruled this week that the Scottish Parliament did not have the power to legislate for a referendum on the question, “Should Scotland be an independent country?” That remains a “reserved matter” for the UK government to provide for, as it did in 2013, and has declined to do since. The question, referred by the Lord Advocate, was determined by the Supreme Court exercising its jurisdiction to determine references on devolution issues.
You can access our reporter’s case summary on the decision here: In re Scottish Independence Referendum Bill  UKSC 31;  WLR(D) 460, SC(Sc) with links from the case info page to the original judgment and to learned commentary from sources including the UK Supreme Court Blog, and the Law and Policy Blog. (For more on ICLR case info pages, and how to make the most of them, see Exploring case information.)
Following the ruling, the First Minister of Scotland, Nicola Sturgeon, said she wants the next general election to be a “de facto referendum” on independence. For an explanation of what this might mean in practice, see BBC, Scottish independence: What is a de facto referendum?
See also: Institute for Government, Scottish independence
Chief to retire
Lord Burnett of Maldon has announced his retirement as Lord Chief Justice and Head of the Judiciary on 30 September 2023. He will by then have served six years in office, which is apparently longer than any LCJ since Lord Lane in the 1980s, and a good deal longer than any Lord Chancellor this century. (Lord Irvine of Lairg, who retired in 2003 after being appointed in 1997, served six years and his predecessor, Lord Mackay of Clashfern, served nine and a half. But since then no Lord Chancellor has served more than three years and some less than one.)
Looking back on his time, Lord Burnett says:
“I have been honoured to lead a wholly independent judiciary dedicated to the rule of law, the administration of justice and public service which confidently celebrates its traditions yet has quietly assimilated very many modern working practices. We have transformed judicial welfare and education and introduced professional support which was lacking in the old arrangements inherited from the Lord Chancellor’s Department by the Judicial Office. We have become much more active in local communities and schools and have a diversity and inclusion strategy which will continue to deliver results.”
He will need to be replaced, and no doubt there are candidates being considered by both punters and bookies, as well as the official selectors. Joshua Rozenberg suggests a few in this recent post on A Lawyer Writes: Burnett to stand down
Whoever is appointed, they will face a well-stuffed in-tray of problems, some of which the Chief discussed in his recent appearance before the Justice select committee in Parliament. They include:
- Backlog of Crown Court cases: the backlog was was already 40,350 before the first lockdown, and had reached 63,000 as the recent Bar action came to an end. That in turn has been exacerbated by the lack of judges to try them and of lawyers to represent defendants or even to prosecute. As the Chief explained to the committee: “The problem, as it seems to me, with a legal community that has been subject to attrition over many years, is that it is not possible simply to flick a switch and magic up hundreds or thousands of criminal lawyers. That is a problem that I fear may be with us for some time.”
- Backlog in civil and family cases. While there were improvements in civil justice thanks to the development of online procedures, there remained a growing backlog of family cases. Partly that was owing to lack of legal aid and representation in private law cases. “As you know, many years ago public funding for those cases was withdrawn. That may have seemed at the time to save money in the legal aid fund, but I question whether, overall, it has saved money. I am not only looking at the increase in number of cases that come into the courts and fight in the courts — scrap in the courts — when parents are representing themselves.”
- Judicial recruitment. The Chief identified various reasons for the failure to find and appoint enough new judges, despite the removal of some of the barriers such as poor pensions and salary, but one of them was that “an insufficient number of fee-paid judges — recorders becoming circuit judges and deputy district judges becoming district judges — are applying for the salaried posts and being successful in their applications.” (That would get worse over time because of the depletion of the legal professions mentioned earlier.) Added to which, the life of a judge had, he said, “undoubtedly become harder. … There are issues, which undoubtedly have an impact, about the raw conditions in which we work.”
- Judicial conduct. In response to a question about the recent report into behaviour within the judiciary which found examples of bullying, harassment or discrimination, the Chief admitted that “it would be folly to pretend that we do not have some problems and we are taking immediate steps to do what we can to mitigate those problems.”
- Courts digitisation and IT problems. For example, the Chief was asked if the common platform was “fit for purpose”, bearing in mind that members of the PCS Union were so concerned that it had decided to take industrial action over the issue. He had to admit that “it has run into a lot of technical problems — more than it should have — and HMCTS is working hard to try to put them right.”
- Physical courts’ condition. In answer to a question about the dire state of many court buildings, the Chief said: “I am nervous about the settlement next year because the reality is that even the money we have had this year, leaving aside inflation, is not enough to keep up with the fundamental problems that we have. The consequence is that we are losing more and more sitting days in all jurisdictions through maintenance failure.”
- Open justice, transparency, and courts data. At his first press conference five years ago the Chief had discussed the broadcasting of sentencing remarks. It has taken until this year to actually get the law changed and start doing so. “There have only been three so far,” he admitted, “but we are moving in the right direction.” As for the Transparency Review in the Family Courts, the Chief said one of the questions was how much it might cost. “The reality at the moment is that the Courts Service has no spare money and no spare staff. Every time I read recommendations about things that should be done in the courts, the questions go through my mind: who is going to do it and who is going to pay for it? An example was the report you published last week, Chair, on Open Justice.” Earlier he admitted that “a shortage of reliable data, which we have talked about in the past, has been a problem, and steps have been taken to try to deal with it.” But as with everything else, this too would presumably cost money.
Women in crime
Statistics on Women and the Criminal Justice System 2021 (published 24 November 2022) indicate, among other things, that the vast majority of those arrested and charged with offences continue to be male, that males tend to be charged with more serious offences, and to serve longer custodial sentences. Moreover, males are at higher risk of being victim to homicides or personal crime than females. However, females are at greater risk of self-harm in prison, and a higher proportion of female prisoners suffer mental health or drug and alcohol problems.
None of this seems altogether surprising. The reason why these statistics are being compiled is because, back in 2018, the Ministry of Justice published its Female Offender Strategy, which set out the department’s “vision and plan to improve outcomes for women in the community and custody”. This reflected the Government’s commitment to achieving certain goals including:
- fewer women coming into the criminal justice system and reoffending
- fewer women in custody, especially on short-term sentences, and a greater proportion of women managed in the community successfully; and
- better conditions for those in custody.
The analysis in this report is intended to help monitor performance in key subject areas and help provide an evidence base for future policy. The MoJ plans to publish a Female Offender Strategy delivery plan in the New Year setting out its plans for delivering these aims in the period to 2025.
For the avoidance of doubt or querulity, the report explains that
“ ‘Sex’ can be considered to refer to whether someone is male or female based on their physiology, with ‘gender’ representing a social construct or sense of self that takes a wider range of forms. Throughout this report we refer to sex rather than gender, because the binary classification better reflects how individuals are generally reported or managed through the CJS.”
Deepfakes and downblousing: abuse of intimate images
Victims will be better protected from abusers who share intimate images without their consent, under a “raft of changes” to the law announced on 25 November 2022 by the Ministry of Justice. According to the announcement:
“Under a planned amendment to the Online Safety Bill, people who share so-called ‘deepfakes’ — explicit images or videos which have been manipulated to look like someone without their consent — will be among those to be specifically criminalised for the first time and face potential time behind bars.
The government will also bring forward a package of additional laws to tackle a range of abusive behaviour including the installation of equipment, such as hidden cameras, to take or record images of someone without their consent.
These will cover so-called ‘downblousing’ — where photos are taken down a woman’s top without consent — allowing police and prosecutors to pursue such cases more effectively.”
“Downblousing” is, of course, the counterpart of “upskirting”, the legislative prohibition of which was famously impeded by a certain generally trouser-wearing old MP on a point of order (what in civil practice we used to call, disdainfully, a “pleading point”). Hopefully the necessary measures can now be not only put on the statute book but enforced in the real world against the digital peeping toms and other gateway sex offenders.
Tackling violence against women and girls
Last week the Home Secretary, Suella Braverman, announced that “millions of pounds are being allocated to tackle violence against women and girls (VAWG)”. Measures announced include:
- £8.4 million to support victims of violence against women and girls
- targeted funding for the most vulnerable communities
- up to £7.5 million for domestic abuse interventions in healthcare settings
- funding for rapid spiking tests to build police intelligence.
“The announcement comes on the International Day for Elimination of Violence Against Women and Girls, which the Home Secretary marked yesterday (24 November) with a visit to Refuge, to see first-hand the support needed for domestic abuse and sexual assault victims to rebuild their lives.”
Other recent items
How well do you know the Online Safety Bill?
Graham Smith on the Cyberleagle blog busts a few myths about the much-discussed Bill which is now back on the parliamentary agenda. A reality check against popular knowledge (or ignorance) and assumptions.
Pseudonymous claimant debarred from proceeding
A rose is a rose is a rose, but a claimant by any other name (such as ‘Cøbra’) is not entitled to participate in costs proceedings, according to the judge in a case concerning crypto currency copyright claims. Michael Cross in The Law Society Gazette reports that “in Wright v Persons Unknown, Costs Judge Rowley agreed to bar ‘Cøbra’ from costs proceedings arising from a copyright case unless it identifies itself and provides an address”. (The judgment appears to be unreported but we’ll publish it if and when a copy emerges.)
COP27 offers limited progress on climate action
Little was achieved at the recent COP27 conference in Egypt to dispel criticism that policymakers globally are not going far enough, fast enough, to address climate change, says Mark Ferguson, Head of Reputation, Crisis, and Client Operations at law firm Pinsent Masons in their Out-Law blog.
“There remains a lack of clarity on the concept of low-emissions and renewable energy, while the recalibration of the global financial system to align with the need for investment in clean technologies remains incomplete.
There was progress, however, with arguably the most significant announcement from COP27 being the new deal on loss and damage, which could see communities most affected by climate change receive billions of dollars in support from developed countries.”
Strategic litigation: more harm than good?
A timely and pertinent essay from Colin Yeo via Free Movement . The words “strategic litigation” are a bit like the expression “lawfare” — ambiguous as to whether they are a Good Thing (as the Good Law Project would aver, in relation to its own particular brand of activist litigation) or a Bad Thing, as when allied to the rest of the phrase “Against Public Participation” (SLAPPs being the abuse of civil processes such as defamation or breach of privacy claims to silence legitimate investigation and financial transparency). One definition given here is cases where lawyers “consciously seek social or political goals while simultaneously pursuing the interests of their individual clients”. Yeo examines the use of judicial review as a tool of scrutiny and public accountability, identifies some of the “usual suspects” who use it to achieve wider ends than the resolution of individual cases, and records examples of where the strategy has failed (ie made things worse) as well as some of its notable successes.
CLA Statement regarding the conviction of Richard Naidu by the High Court of Fiji
The Commonwealth Lawyers Association has expressed its concern over the contempt proceedings brought against Mr Richard Naidu over a post on his Facebook account, commenting on a spelling error in a judgment. The CLA says the invoking of criminal contempt against Mr Naidu for “scandalizing the court”, which has been repealed in many parts of the Commonwealth, will have a chilling effect on open justice. The comment could not satisfy the stringent threshold for the offence alleged, the CLA averred, and “the court’s decision amounts to an unreasonable and disproportionate restriction on freedom of speech and expression”. The CLA therefore urges the Attorney General of Fiji to withdraw the charge of contempt against Mr Naidu and to move to quash the conviction.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CONSUMER PROTECTION — Consumer credit — Debtor: Cooper v Freedom Travel Group Ltd, 25 Nov 2022  EWCA Civ 1557;  WLR(D) 467, CA
CRIME — Detention on remand — Detention after acquittal: R (Niagui) v Governor HMP Wandsworth, 17 Nov 2022  EWHC 2911 (Admin);  WLR(D) 459, KBD
CRIME — Proceeds of crime — European Union anti-money laundering legislation: WM v Luxembourg Business Registers, 22 Nov 2022 (Case C-37/20); (Joined Cases C-37/20 and C-601/20); EU:C:2022:912;  WLR(D) 466, ECJ
CRIME — Sentence — Fire safety offences: London Fire Comr v Bupa Care Homes (ANS) Ltd, 17 Nov 2022  EWCA Crim 1508;  WLR(D) 461, CA
IMMIGRATION — Deportation order — Appeal: AEB v Secretary of State for the Home Department, 18 Nov 2022  EWCA Civ 1512;  WLR(D) 454, CA
PRACTICE — Claim form — Service out of jurisdiction: CA Indosuez (Switzerland) SA v Afriquia Gaz SA, 11 Nov 2022  EWHC 2871 (Comm);  WLR(D) 458, KBD
PRACTICE — Documents — Filing: JJH Enterprises Ltd v Microsoft Ireland Operations Ltd, 11 Nov 2022  EWCA Civ 1509;  WLR(D) 453, CA
PUBLIC PROCUREMENT — Contract award procedure — Selection criteria: Antea Polska SA v Państwowe Gospodarstwo Wodne Wody Polskie, 17 Nov 2022 (Case C-54/21); EU:C:2022:888;  WLR(D) 464, ECJ
REVENUE — Corporation tax — Profits, computation of: Centrica Overseas Holdings Ltd v Revenue and Customs Comrs, 18 Nov 2022  EWCA Civ 1520;  WLR(D) 451, CA
TERRORISM — Counter-terrorism — Temporary exclusion order; HUMAN RIGHTS — Fair trial — Suspected international terrorist: QX v Secretary of State for the Home Department, 22 Nov 2022  EWCA Civ 1541;  WLR(D) 465, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Nearly Legal: Assessment of housing needs and cascading unlawfulness: R (YR) v Lambeth London Borough Council  EWHC 2813 (Admin), KBD
Free Movement: Post-Brexit marriages in durable partner appeals: Elais (fairness and extended family members)  UKUT 300 (IAC), UT (IAC)
A Lawyer Writes: Braverman’s costly briefing: Attorney General for England and Wales v British Broadcasting Corporation  EWHC 2925 (KB), KBD
UK Human Rights Blog: Removal of gametes from brain dead man would breach his rights to privacy: Court of Protection: Re X (Catastrophic Injury: Collection and Storage of Sperm)  EWCOP 48, Ct of Protection
UK Human Rights Blog: Painful lessons about the duty of candour (more on the unlawful seizure of migrants’ mobiles): R (HM, MA & KH) v Secretary of State for the Home Dept  EWHC 2729 (Admin), KBD (Admin)
Law & Policy Blog: Do referendums now have a special constitutional status? And has the Supreme Court made it far harder for the UK government to ignore the results of any further “advisory” referendum? Some fascinating passages in today’s Supreme Court judgment: In re Scottish Independence Referendum Bill  UKSC 31;  WLR(D) 460, SC(Sc)
RPC Perspectives: Marex Strikes Again: Giles v Rhind exception to rule against reflective loss is “dead for all intents and purposes”: Breeze v Chief Constable of Norfolk Constabulary  EWHC 942 (QB), QBD
Legal Futures: Identity of those instructing solicitors not protected by litigation privilege: Loreley Financial (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd  EWCA Civ 1484;  WLR(D) 457, CA
Dates & Deadlines
Christmas and New Year courts and tribunals opening times 2022
The Michaelmas Term ends on Wednesday 21 December 2022. Courts and tribunals will temporarily close on various dates over the Christmas vacation period. The closure dates for this year are:
- Monday 26 December 2022
- Tuesday 27 December 2022
- Wednesday 28 December 2022
- Monday 2 January 2023
Some magistrates’ courts will be open on 26 and 27 December 2022 and 2 January 2023 remand hearings only, and magistrates’ courts will be open generally on 28 December 2022. Get full information via HMCTS/Gov.uk
Tweet of the week
Though ICLR will not be leaving Twitter entirely, this may be the last time we promote it for fun. So, aptly enough, we found a farewellish sort of tweet from someone else who seems to be leaving the platform (a judicious choice, perhaps):
That’s all folks, for this week. Thanks for reading, and thanks for all your toots, tweets, posts 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.