Weekly Notes: legal news from ICLR, 3 February 2020

This week’s roundup of legal news and commentary takes us from Brexit to Future Wellbeing, two awful events in London, a massive case of corruption, a little learning and some recent legal viewing.

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Brexit: we’ve cracked it now.

Brexit

Turning a page … starting a new chapter … national renewal … dawn of a new age … birth of a new Britain … and so on. All the old tropes were in evidence as the press attempted to come to terms with the decree nisi, as it were, of the UK’s divorce from the European Union.

For example, The Sun hailed, “The birth of a new Britain, setting our own laws, controlling our borders and trading independently with the entire world.” The BBC reported that “Prime Minister Boris Johnson has hailed the ‘dawn of a new era’, promising ‘real national renewal’ after 47 years of EU membership.” The New York Times noted that At the Stroke of Brexit, Britain Steps, Guardedly, Into a New Dawn. Even the Moscow Times had something to say about Brexit, in the words of Deborah Bronnert CMG, Britain’s ambassador to the Russian Federation, who said:

“Tomorrow, we start a new chapter in our history. The UK government is determined that we build on the strong relationships we have with the countries of Europe, and that, simultaneously, we develop partnerships further afield. We will continue to be an outward-looking, world-leading country.”

B-day was on 31 January 2010. There is work still to be done, a deal to be negotiated, that will govern the future relationship, before the decree absolute. On 3 February the EU Commission issued a press release setting out its position. It has proposed:

“negotiating directives, defining the scope and terms of the future partnership that the European Union envisages with the United Kingdom. These directives cover all areas of interest for the negotiations, including trade and economic cooperation, law enforcement and judicial cooperation in criminal matters, foreign policy, security and defence, participation in Union programmes and other thematic areas of cooperation. A dedicated chapter on governance provides an outline for an overall governance framework covering all areas of economic and security cooperation.”

A Council Decision (COM(2020) 35 final) authorising the opening of negotiations (and annexing the directives) has also been published. For initial commentary, see Steve Peers thread on Twitter. (It’s quite long so hopefully a blog post will follow.)

Michel Barnier, the European Commission’s Chief Negotiator, said:

“We will negotiate in good faith. The Commission will continue working very closely with the European Parliament and the Council. Our task will be to defend and advance the interests of our citizens and of our Union, while trying to find solutions that respect the UK’s choices.”

On Twitter, some Brexiteers were shouting, in essence, “look — no disaster” to suggest the nay-sayers and doom-mongers on the Remain side had been wrong all along. But the whole point of the deal was to avoid, or postpone, the disaster that no-deal portended. (For more on this, see David Allen Green on his Law and Policy Blog: The hidden wiring of Brexit is keeping Brexiters safe from falling.)

See also: Obiter J, Law and Lawyers: Reflections on Exit Day

Meanwhile, a number of Remainers were exhorting their fellow doubters to stop sneering at the vox pop interviewees, captured on the news with their flags and slogans at public celebrations, who struggled to articulate any cogent reasons for having voted for Brexit. Others continued to vent their anger at the loss of rights and benefits resulting from so ill-considered an upheaval.

Legislation

In The Big Issue, Liam Geraghty commented on the current political agenda:

“While much of the triumphalist rhetoric from the Leave side, topped by the Big Ben bong banter, has been hard to stomach for a huge percentage of Britain — almost half — the event is a reality. And there are two ways for us to face up to this reality. Either we can step up to resist it, or we can accept it and work out ways to chisel some success from it. The latter is the only reasonable and pragmatic approach. Rather than being fearful, it’s time to put our collective energy into looking ahead.”

He drew attention to Lord Bird’s private members bill, The Wellbeing of Future Generations Bill, which had its first reading in the House of Lords on 8 January. This is billed, as it were, as:

“A Bill to make provision for requiring public bodies to act in pursuit of the United Kingdom’s environmental, social, economic and cultural wellbeing by meeting wellbeing objectives, publishing future generations impact assessments, accounting for preventative spending, and through public services contracts; to establish a Commissioner for Future Generations for the United Kingdom; to establish a Joint Parliamentary Committee on Future Generations; to require companies to consider the impact of their activities on the United Kingdom’s wellbeing; and for connected purposes.”

Geraghty explains:

“The Future Generations Bill goes beyond Brexit. It aims to combat the short-termism that, for some, Brexit has come to define. It will prevent a future where we are doomed to an endless cycle of repeating yesterday’s mistakes.”

Law Society

Towards midnight on Saturday 1 February reports began to emerge of a fire at the six-storey offices of the Law Society in Chancery Lane, London, which is two doors up from the ICLR’s own offices. The fire alarm went off during a Junior Lawyers Division event. The building was evacuated and some 150 firefighters were rushed to the scene. The fire, which was still going at 7am on Sunday morning, is said to have begun on the roof. Eyewitnesses reported seeing a lot of smoke. It’s not yet clear how much damage has been done but fortunately no one seems to have been hurt. Some local residents were also evacuated and roads closed around the area. There are reports from the London Fire Brigade and BBC News over the weekend. According to the Law Society Gazette (whose offices were affected but published as normal on Monday morning):

“Law Society chief executive Paul Tennant said: ‘First of all I wanted to express my gratitude to the fire service and my relief that nobody has been hurt. I also want to express my sympathy to the residents in the Chancery Lane area whom I understand may have had to evacuate their homes.

‘It is too early to comment on the cause of the fire or the extent of the damage but clearly we are extremely upset that this has happened to this wonderful and historic building.’”

Terrorism

In Streatham on 2 February armed police shot dead a man who had attacked people with a knife and was wearing what might have been a bomb-vest. (It turned out to be fake.) Three people were injured but no one else killed. The attacker appears to have been recently released from prison after serving part of a sentence for a terrorism offence and was under surveillance, which may explain the exceedingly rapid police response to the situation.

In a statement the Prime Minister paid tribute to the speed and bravery of the police response and promised to announce “further plans for fundamental changes to the system for dealing with those convicted of terrorism offences”, citing the recent events in Fishmonger’s Hall near London Bridge (in which a recently released terror convict went on a stabbing spree and was shot). Changes were announced after that (strikingly similar) event, but evidently there is more to be done, and sooner. (Note that draft secondary legislation brought in after that previous event, and announced on 22 January 2020, would only have taken effect from April: see The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019 (Draft) para 1.)

Further reading: BBC, Streatham attacker had been released from jail

The Guardian, Who was the Streatham attacker and why was he imprisoned?

Fraud

Dame Victoria Sharp, President of the Queen’s Bench Division, sitting in the Crown Court at Southwark, granted an application by the Director of the Serious Fraud Office for approval of a deferred prosecution agreement (DPA) with Airbus SE. By her final order, made in public on 31 January 2020, the judge explains, in para 1:

“Airbus must pay a total financial sanction of approaching one billion euros (€990,963,712 including costs) to the Consolidated Fund via the SFO within 30 days of today’s date, made up of the disgorgement of profit of €585,939,740 and a penalty of €398,034,571. To put this figure into context, this financial sanction is greater than the total of all the previous sums paid pursuant to previous DPAs and more than double the total of fines paid in respect of all criminal conduct in England and Wales in 2018.”

See Director of the Serious Fraud Office Applicant v Airbus SE (unreported), 31 January 2020. (There is not as yet a Neutral Citation or any law report of the case, but the judgment has been published on the Judiciary website. The lack of Neutral Citation is easily explained: they do not officially exist for Crown Court cases, but BAILII does create something equivalent for such cases. Earlier cases cited by the judge all appear to have Westlaw citations, which is only of use to those with access to Westlaw, and does not promote transparency in our opinion. We will try to do something about this.)

The judge goes on to explain (para 2) that this is not the full extent of Airbus’s liability, because the SFO investigation was conducted alongside similar ones by French and US authorities, in each of which Airbus has reached a similar settlement agreement. Therefore, the total sums which Airbus must now pay in a global context exceed €3.5 billion. The SFO investigation related to bribery offences in Malaysia, Sri Lanka, Taiwan, Indonesia and Ghana, while the French and American investigations covered bribery and corruption in a host of other territories. The criminality involved was, says the judge, “grave”.

“The SFO’s investigation demonstrated that in order to increase sales, persons who performed services for and on behalf of Airbus offered, promised or gave financial advantages to others intending to obtain or retain business, or an advantage in the conduct of business, for Airbus SE. It is alleged that those financial advantages were intended to induce those others to improperly perform a relevant function or activity or were intended to reward such improper performance and that Airbus did not prevent, or have in place at the material times adequate procedures designed to prevent those persons associated with Airbus from carrying out such conduct.”

The judge explains in para 6 that the legislative mechanism for DPAs is provided by Schedule 17 of the Crime and Courts Act 2013, and the relevant rules of court are contained in Part 11 of the Criminal Procedure Rules (CrPR) and a Deferred Prosecution Code of Practice (the DPA Code) published jointly by the SFO and the CPS. She quotes her predecessor Sir Brian Leveson P explaining in an earlier case that “a critical feature of the statutory scheme in the UK is the requirement that the court examine the proposed agreement in detail, decide whether the statutory conditions are satisfied and, if appropriate, approve the DPA” (see SFO v v Standard Bank Plc [2016] Lloyd’s Rep FC 102).

See also:

Law on TV

Two recent series on BBC television with a legal theme:

Chris Daw QC and solicitor Ayesha Nayyar look at how Britain’s courts are handling law and order. What’s interesting is that they come at if from different starting points. Nayyar says we need to get much tougher, with more prosecutions, more convictions and longer sentences, while Daw says that’s all been tried before and failed. So the series of five programmes, covering the courts, the police, prisons, the streets and a trial in which the system itself is on trial, could be said to adopt an adversarial rather than inquisitorial approach. We hope to review it more fully in due course.

Start with Episode 1: the Courts

This is a historical drama based on a sex, politics and spy scandal in the early 1960s that led to a ministerial resignation, a tragic suicide and a somewhat humbug-ridden report by a top judge (Lord Denning). You can read about the Denning report on the Parliament website, where it is introduced as follows:

“During the summer of 1961 scandal enveloped Harold Macmillan’s Conservative Government, driven by tabloid sensationalism and Cold War intrigue. A brief relationship between John Profumo, Secretary of State for War, and an aspiring model, Christine Keeler, ended when the Security Services informed Profumo of Keeler’s connections with a Soviet spy. Yet rumours persisted and in March 1963 Profumo stood before the House of Commons and denied improprieties with Keeler.

Due to the persistence of Labour politician George Wigg the storm continued and Profumo resigned as a member shortly after. The beleaguered Government appointed Lord Denning to conduct a judicial inquiry into the affair. The Report, released with much press interest in the autumn of 1963, concluded that there had been no security risk. Profumo withdrew from public life, devoting himself to charitable works for which he was awarded a CBE in 1975.”

The scandal broke soon after the Chatterley Trial, in which Penguin Books was acquitted of obscenity after publishing a cheap paperback edition of DH Lawrence’s novel Lady Chatterley’s Lover. The two events in retrospect seem to have marked the dawn of the Swinging Sixties as an era, though the change in public attitudes probably dates from earlier years.

The Profumo Affair (as has generally been thought of) has inspired quite a few books and at least one previous film version, Scandal (1989). This new TV series is well made and devotes sufficient (perhaps too much) time to the leisurely unfolding of the story, although it does jump back and forth in time in a way that is sometimes confusing. It focuses mainly on the “model” who was the catalyst of the events but who seems to have had little control over her own fate. The matrix of media prurience, cold war hysteria and political hypocrisy makes for a satisfying narrative.

Unfortunately you can’t actually read the Denning report on the Parliament website, but perhaps it can be found on Public Information Online, which we reviewed recently, and which has all Command Papers (of which this is one) since 1955. And you can sometimes find old copies in second hand book shops.

Public Legal Education

“I think it inevitable that too many people take their sense of who judges are and what judges do from TV and from films, and I’m happy to say that the general image that you see through TV and films is just not the truth. There are all sorts of misunderstandings.”

“So … when I became Chief Justice, I was very keen to develop ideas, along with lots of other people, to try to improve public understanding, and especially amongst young people.”

So says the Lord Chief Justice, Lord Burnett of Maldon, introducing a new online course (for all ages), about The Modern Judiciary.

The course has been organised by James Lee, Reader of English Law at King’s College London, and is run jointly by King’s College and the Judiciary of England and Wales, via the Futurelearn platform. It’s what is sometimes called a MOOC — a mass open online course.

ICLR news

You may have seen our ad in the latest (Feb) issue of Counsel magazine, asking if you “know your catchwords from a headnote?” If not, you’d better find out: see our Knowledge section on law reporting and case law. We are looking for barristers or solicitors with good analytical skills and good written English who can fillet a judgment and give readers the essence of a legal precedent.

Closing date for applications is 1 March 2020. For more details of what’s required, see our Careers page.

Dates and Deadlines

University of Law, Moorgate — Thursday 20 February 2020 6–8pm

Big Voice London is again offering A level students the opportunity to compete in their Mooting Competition in association with the Supreme Court, which begins on 20 February. Application deadline 9 February.

They are looking for moot mentors.

“We are looking for law students or recent graduates (including LLB, LLM, LPC, BPTC, GDL, PhD etc.) to act as Moot Mentors. Successful applicants will moot alongside A-Level students which Big Voice London works with and will act as mooting partners/mentors throughout the competition.

There will be a training session, on 20 February, where you will be taught all about mooting. For more info and the other mooting dates, see Big Voice London website.

Deadline: Monday 2 March 2020.

Sir Andrew McFarlane, The President of the Family Division, is undertaking a review of the current arrangements which regulate access by journalists and the public to, and the reporting of, information concerning proceedings in the Family Court (‘the Transparency Review’).

He has issued a call for evidence inviting any person or agency who wishes to submit evidence, advice or other material for consideration in the review.

And finally…

Dwelling one more time on B-day, a Big Ben Bonging tribute from anti-Brexit campaigners Led By Donkeys:

That’s it for EU and me. Till next week… Thanks for reading.

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.

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