Weekly Notes: legal news from ICLR, 3 April 2023
This last roundup of the Hilary (Winter) Term includes economic crime, media misbehaviour, family law, courts; plus recent case law and commentary.
Fraud and economic crime
Corrupt elites and criminal gangs who abuse our financial system will be identified and stripped of their cash through a new plan to tackle economic crime, says the Home Office in a recent announcement. The Economic Crime Plan 2 builds on the foundations of its predecessor (Economic crime plan 2019 to 2022) with new actions to improve the system-wide response to economic crime through enhanced cooperation between government, law enforcement, supervisory agencies and the private sector.
“Our response to economic crime will be bolstered by 475 new highly trained financial crime investigators, spread across intelligence, enforcement and asset recovery at key agencies. This increased capacity will be targeted toward the detection and disruption of money laundering, and the recovery of an additional £1 billion in criminal assets over the next 10 years.
Building on our unprecedented package of sanctions in response to Russia’s invasion of Ukraine, we are now expanding the National Crime Agency’s Combatting Kleptocracy Cell to target more corrupt elites and their enablers, while consolidating the effectiveness of UK sanctions.”
As well as the Combatting Kleptocracy Cell, and all those “highly trained” investigators, there will now also be a new multi-agency “crypto cell” combining law enforcement and regulators to pool expertise and more effectively identify, seize and store illicit crypto assets. The announcement also claims that “cutting edge technology” will be used to “stay one step ahead” of the crooks, rather than (as happens all too often) the other way round.
Let’s hope it all works. Last November in its report on Progress combatting fraud the National Audit Office reported that the government “does not know the full scale of the fraud threat to individuals and businesses and is not yet leading an effective cross-government strategy to tackle it”.
A more recent report from the NAO, published last week, suggests the government has some catching up to do even in dealing with fraud and corruption against itself: Tackling fraud and corruption against government.
“The report follows our previous work which found government did not have a good understanding of fraud before the pandemic. In our 2016 Fraud landscape review, we found a large disparity between the level of fraud and error that the UK government reports and the level reported in other countries and the private sector. We also found there were few incentives for departments to record and report the true scale of potential fraud; a lack of data or metrics to evaluate performance in detecting and preventing fraud; and mixed capability across departments to tackle fraud.”
Maybe some of those 475 new highly trained financial crime investigators can help.
Royal courts justice
Prince Harry was among the claimants making a personal appearance in the High Court last week, along with Elton John, Baroness Doreen Lawrence and others, for a preliminary hearing in which the defendants, Associated Newspapers, owners of the Daily Mail, were applying to have the claims of phone hacking and other forms of illegal information-gathering thrown out as being out of time. They also complained that the claimants should not be allowed to rely on evidence provided by Mail to the Leveson Inquiry in confidence.
“I am bringing this claim because I love my country and I remain deeply concerned by the unchecked power, influence and criminality of Associated,” Harry wrote in a witness statement. Although he no longer actually lives in this country, having sensibly decamped to sunny California, he has shown a willingness to pursue media litigation here in a way that most royals have hitherto shrunk from, and the Mail is anxious to see off the action at an early stage. If the case goes to trial the allegations will be aired in open court, with maximum publicity.
(Previously, the Prince’s consort, the Duchess of Sussex, had her day in court against the Mail — HRH Duchess of Sussex v Associated Newspapers Ltd  EWCA Civ 1810;  4 WLR 81 — so it is surely right that he should have his. And then, if it all goes according to plan, they can have a matching set of His ‘n’ Hers framed court orders to grace their homely downstairs restroom.)
The judge in this case, Mr Justice Nicklin, has already acceded to a request that the names of Mail journalists and others against whom specific allegations are made should not be make public at this stage. But after a four-day hearing, he has reserved judgment on the main applications.
There is daily coverage of the proceedings on Inforrm’s blog (reposted from Byline) by Brian Cathcart:
- Case Report: Prince Harry and Elton John watch as Mail fights for confidentiality
- Mail hacking case Day 2: Early Sparring over ‘ledgers’ in a much longer battle vital for the newspapers’ future
- Mail Hacking Case Day 3: Mail argues that it’s all too late
- Mail Hacking, Final Day, Judgment reserved after some surreal moments
See also: BBC: Prince Harry privacy case: battle with Mail owner begins
Jim Waterson, media editor of The Guardian: Amid the Prince Harry circus lies a court battle with the highest stakes
Surrogacy law review
Last week the Law Commission of England and Wales and the Scottish Law Commission published a joint report proposing reforms to improve what they describe as “outdated” surrogacy laws. The use of surrogacy — where a woman becomes pregnant and gives birth to a child to be brought up by another family — has increased in recent years, and is recognised by the Government as a legitimate form of building a family. But laws intended to regulate the process, some dating back to the 1980s, have failed to keep up with modern practice.
The recommended draft legislation would establish a new regulatory regime offering greater clarity, safeguards and support — for the child, the surrogate and the child’s intended parents (the ones who would actually raise the child).
Currently, intended parents have to wait until the child has been born and then apply to court to become the child’s legal parents. The process can typically take six months to a year to complete. During that period the surrogate is the child’s legal parent, which doesn’t reflect the reality of the child’s family life, and can affect the intended parents’ ability to make decisions about the child in their care. The new proposals would enable the intended parents to be recognised as the legal parents from birth, as long as that remains the wish of the surrogate, while protecting the surrogate’s autonomy throughout pregnancy and childbirth.
At present there is a lack of clarity around the payments which can be made by the intended parents to the surrogate. The recommendations will permit reasonable payments while preventing commercialisation of the process. There is also a proposal to create a surrogacy register to enable children later to learn about their origins. The report says:
“Our recommendations provide important protections against the exploitation of women who become surrogates, by putting in place safeguards and checks before conception takes place.
Finally, in view of the particular concerns associated with international surrogacy, our recommendations incentivise intended parents in England, Wales and Scotland who are considering surrogacy to enter into an arrangement here, rather than going abroad.”
- Summary of the report, Building Families Through Surrogacy: A New Law
- Joshua Rozenberg, A Lawyer Writes, New surrogacy law proposed
- Frank Cranmer, Law & Religion UK, Reforming surrogacy law in Great Britain
Transparency and anonymisation
One of the subcommittees on the President of the Family Division’s Transparency Implementation Group (TIG) is concerned with the publication of (more) judgments from private family law hearings. A major concern for judges has been the burden of anonymising any published judgment and ensuring that the boosting of transparency that comes from publishing judgments (as urged by the President) does not harm the children involved in the cases.
Now thanks to a report published earlier this year, Draft Publication Guidance for Judges, we can get a better idea of the challenges involved and learn the views of judges on the process. The group collected judges’ views and experiences of publication by setting up six focus groups which met by Zoom and responded to questions designed to stimulate discussions amongst the judges. They concluded that it would be better to propose publication of between five and ten judgments per year rather than the 10% of all cases initially recommended by the President.
There is a helpful explainer by Dr Julie Doughty, one of the members of the subcommittee, on the Transparency Project blog: Why we hardly ever see published family court judgments
Vacation opening times
Most courts and tribunals will temporarily close over the Easter period, from Friday 7 to Monday 10 April 2023. They will reopen on Tuesday 11 April 2023.
Some magistrates’ courts will be open on Saturday 8 and Monday 10 April 2023, but for remand hearings only. There are more details on the HM Courts & Tribunals Service website here.
Law term dates
The Easter law term begins on Tuesday 18 April and runs to Friday 26 May 2023. There will then be a short Whitsun break before the Summer (known as Trinity) term begins on Tuesday 6 June, ending on Monday 31 July 2023.
After the Long Vacation (occupying the whole of August and September), the Autumn or Michaelmas term begins on Monday 2 October and runs to Thursday 21 December 2023.
International rule of law
Russia’s UN security council role is a bad April fool’s joke, says Ukraine, according to The Times. It turns out that Russia will assume the rotating presidency of the 15-member UN security council on 1 April. As one of the five permanent members, Russia also has a veto on resolutions of the council, thus effectively neutralising its ability to intervene or prevent aggression or threats to other nations’ security by Russia itself, or any of the other five permanent members — China, the USA, France and the UK. The article goes on to explain that Russia’s previous stint in the presidency was in February 2022, the month it launched its invasion of Ukraine.
As a mechanism for keeping order in the world, the United Nations is probably not as effective as it might be. The big strong nations can use it to keep less powerful states in order, but those lesser states cannot rely on the UN to protect them against bullying by the big five. That may explain why other multinational pacts have proliferated, the most obvious being NATO.
A grand jury has decided to indict former US President Donald Trump but the indictment has been sealed so we don’t know what precise charges are likely to be preferred. (The grand jury process is a preliminary vetting of evidence, conducted in private, to see if there is enough to justify a charge.) It is widely assumed to relate to the way hush money payments, made to a porn star known as Stormy Daniels shortly before the 2016 presidential election, were recorded in Trump’s corporate accounts. An investigation into this has been conducted by the Manhattan District Attorney Alvin Bragg. It is one of a number of criminal and other legal proceedings being pursued against Trump, including a Department of Justice investigation for obstruction of justice due to the classified documents found at his Mar-a-Lago property.
Trump is expected to fly to New York from his home in Florida in time for the arraignment, at which he will be read the charges and asked to plead. There is some speculation over whether the former President — the first to have been charged with a criminal offence — will be formally arrested and handcuffed. Trump also faces the prospect of having his fingerprints recorded and his mugshot taken, like all defendants in criminal cases.
For more on this, see:
- BBC, Donald Trump indictment: Ex-US president to be charged over hush money
- David Allen Green, The Indictment of Donald Trump and the Art of the Process
- Joshua Rozenberg, Coming to court
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
AGENCY — Commercial agent — Contract: QT v O2 Czech Republic a s, 23 Mar 2023 (Case C-574/21); EU:C:2023:233;  WLR(D) 154, ECJ
COMMONS — Town or village green — Deregistration: R (Strack) v Secretary of State for the Environment, Food and Rural Affairs, 24 Mar 2023  EWHC 655 (Admin);  WLR(D) 156, KBD
DATA PROTECTION — Personal data — Access to: R (the3million Ltd) v Secretary of State for the Home Department, 29 Mar 2023  EWHC 713 (Admin);  WLR(D) 158, KBD
EXTRADITION — European arrest warrant — Grounds for non-execution: Proceedings concerning LU (Proceedings concerning PH), 23 Mar 2023 (Case C-514/21); (Joined Cases C-514/21 and C-515/21); EU:C:2023:235;  WLR(D) 151, ECJ
LOCAL GOVERNMENT — Homeless persons — Housing duty: Zaman v Waltham Forest London Borough Council (Uduezue v Bexley London Borough Council), 24 Mar 2023  EWCA Civ 322;  WLR(D) 144, CA
PRACTICE — Claim — Striking out: Owen v Blackhorse Ltd, 24 Mar 2023  EWCA Civ 325;  WLR(D) 155, CA
REVENUE — Customs and Excise — Appeal: Dawson’s (Wales) Ltd v Revenue and Customs Comrs, 28 Mar 2023  EWCA Civ 332;  WLR(D) 157, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Nearly Legal: Illegal eviction — attempted or accomplished? Wu (Susan) v Chelmsford City Council  EWCA Crim 338, CA
Pump Court Chambers: No strike out despite the claimant’s absence at trial, Owen v Blackhorse Ltd  EWCA Civ 325;  WLR(D) 155, CA
Local Government Lawyer: Council decision to extend conservation area to save department store building was unlawful, High Court rules: Future High Street Living (Staines) Ltd v Spelthorne Borough Council  EWHC 688 (Admin), KBD
Nearly Legal: Location, location, location (and getting discharge of duty right): Zaman v Waltham Forest London Borough Council  EWCA Civ 322;  WLR(D) 144, CA
Free Movement: Amended data protection exemption for migrants declared unlawful: R (the3million Ltd) v Secretary of State for the Home Department  EWHC 713 (Admin);  WLR(D) 158, KBD
Free Movement: Refusals of naturalisation on good character grounds can only be challenged by irrationality: R (Sandy) v Secretary of State for the Home Department  EWHC 640 (Admin), KBD
RPC Perspectives: IHT appeal allowed as friend of deceased had no interest in possession: Hall & Lopez (as trustees of the Carolina Raboni estate) v HMRC  UKFTT 32 (TC), FTT (TC)
Tweet of the week
in which Sarah Robson (“literally a Black Belt Barrister”) shows how Caturday has taken to the cloud:
That’s it for this term! Thanks for all your tweets, toots and links in, and enjoy the egg-bunny break. See you back here next term.
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.