Weekly Notes: legal news from ICLR — 3 June 2019

Welcome back: our first roundup of the Trinity Term features Boris Johnson in the dock, questions around crime stats, crowdfunding civil litigation, lawtech, and legal professions.

Misconductor? Boris Johnson in the frame for campaign lies

Crime

Misconduct in public office is a common law offence: it is not defined in any statute. It carries a maximum sentence of life imprisonment. The offence requires that: a public officer acting as such; wilfully neglects to perform his or her duty and/or wilfully misconducts him or herself; to such a degree as to amount to an abuse of the public’s trust in the office holder; without reasonable excuse or justification.

The offence is widely considered to be ill-defined and has been subject to recent criticism by the Government, the Court of Appeal, the press and legal academics.

Thus explained the Law Commission when inviting responses to its consultation on the law of misconduct in public office (MIPO) on 5 September 2016. The consultation, now closed, was intended to help the commission decide “whether the existing offence of misconduct in public office should be abolished, retained, restated or amended and to pursue whatever scheme of reform is decided upon”. The commission has yet to report.

Newspapers writing about the offence characteristically (perhaps because they all use the same googled sources) describe the offence as “ancient” (dating back, if not to the 13th century, at least to the 18th) and suggest it was “little used” (or in posher titles had “fallen into desuetude”) until conveniently “revived” in order to deal with things like MPs’ expenses and police collusion with the media during the phone-hacking trials of recent years. (Journalists could then be charged with the offence of conspiracy in relation to the same collusion.)

There aren’t many common law criminal offences, though one that is in frequent use is murder. But the point about the common law is that it can lie in wait for you for centuries without being used, unless and until it is taken over or abolished by statute. That is one option in what the Law Commission envisages for MIPO. The chair of the Law Commission at the time of the consultation was Lord Justice Bean (who once did the present author the inestimable service of being his sponsor to join Middle Temple). In a lecture at the Reform Club, Bean LJ discussed the history and development of the offence, describing the Court of Appeal’s attempt to define its elements in a case in 2004 as being “very close to” saying it amounted to “being so naughty that a jury thinks you should be sent to prison”. He also said, in response to one suggestion for a new statutory offence:

All I can properly say is that any proposal for a statutory offence, punishable by life imprisonment, of telling lies at a press conference would be most unlikely to get through either House of Parliament.

And so to the question of the hour: has Boris Johnson MP been so naughty that a jury might think he should be sent to prison?

If it really were a jury of his peers, or commons, there is a good chance they might. Ditto if they were a jury of the Indignant Remainer Elite (IRE), or however you want to characterise those [generally more left or centre than] right thinking people who believe it’s about time politicians’ megaphones were subject to the same constraints as to truth and decency as they wish upon the media, social media, et al.

Johnson has been named as proposed defendant in a private prosecution brought by Marcus Ball, who seems to be an activist of some sort, and has set up a company (Brexit Justice Ltd) and crowdfunded the means to advertise and bring the case. In a decision surprising to many, District Judge Margot Coleman, sitting in Westminster Magistrates’ Court, concluded that “this is a proper case to issue the summons as requested for the three offences as drafted.” The offences are of misconduct in public office and allege that, while Johnson was a holder of one or other of two public offices, that of MP and that of Mayor of London, he “repeatedly lied and misled the British public as to the cost of EU membership”, claiming it was £350m per week when he knew that was a false and misleading figure. The allegations were unproven and the judge made no findings of fact. But there was, she said, a prima facie case and the arguments of the defence, eg that Johnson was acting as leader of the Vote Leave campaign at the time and not acting in a public official capacity, could be raised at the trial. Nor did she accept that the prosecution was vexatious.

While some have rejoiced at the prospect of politicians finally being accountable for their extravagance with the truth, others, including a fair number of lawyers, have expressed doubt and dismay. A retired judge, His Honour Peter Murphy, expressed the views of many when writing to The Times:

“Lies and apparent lies have been part of political campaigning throughout history, especially so in this age of fake news and alternative facts. The appropriate response lies with the electorate, which has the power not to reward lying by withholding its votes.

The problem is that most claims made during campaigns are less obviously false than those on the Leave bus. They are more often genuinely debatable, more nuanced, matters of opinion, or even arguably correct. But there are many now whose default position is that every word coming out of their opponent’s mouth must be a lie.

If such people get the idea that they can use a prosecution, or threat of prosecution, to silence and opponent during a hard-fought campaign, it will stifle the robust debate necessary to the democratic process.”

One suspects Bean LJ would agree. So what next for Johnson? Unless a trip to the Divisional Court intervenes, or the Crown Prosecution Service steps in to take over and discontinue the prosecution, the next step is that he will be required to attend the Magistrates’ Court for a preliminary hearing, give a plea (presumably of not guilty) and the case will then be sent to the Crown Court for trial.

If the case goes to the Divisional Court on a claim for judicial review or appeal by case stated, there may be a stairway of further hearings all the way up to the Supreme Court before Johnson has to plead to any actual arraignment. Alternatively, a challenge could be made at the outset of any criminal trial (eg that it is an abuse of process); or at half time (that there is in fact no case to answer). At all events, the case may prompt a speedier legislative response to whatever the Law Commission comes up with, than might otherwise have been the case.

Further reading:

NB. The crime of misconduct in public office (MIPO) is not to be confused with the tort of misfeasance in public office (also MIPO, confusingly) which is a civil cause of action. It involves misfeasance by a tortfeasor. Or wrongdoing by a wrongdoer, if you want to speak in modern English. And a lower standard of proof (but that would need to include proof of some sort of loss to the claimant).

“It is odd,” says penal system commentator Russell Webster, “that our prison and probation systems are in such chaos at the same time as there are fewer criminals in the justice system than ever before.” He makes a number of observations on the annual Criminal Justice Statistics bulletin for 2018, including the facts that

  • The total number of individuals formally dealt with by the CJS in England and Wales in 2018 was 1.59 million, a number which has been declining since 2015 and fell 3% in the latest year to a record low (since 1970).
  • Prosecutions were also down (by 2%). 1.38 million people were prosecuted last year. Decreases were seen in all offence groups except possession of weapons (up 4%) and summary motoring offences (up 3%).
  • Remands were also down — In the latest year, the number of defendants remanded on bail by the Police decreased by 24%, while the number remanded in custody decreased 7%. A similar trend was observed at courts.
  • Those who are sent to prison receive longer sentences, the average is now 17.3 months.
  • Offenders with long criminal careers now account for nearly two-fifths of the offending population.

But while the number of offenders in the system may be down, it seems far from clear that that means there is less crime or fewer criminals, or (which is more likely) there is simply not the resources to find and catch them. That would depend on the statistics on reported crime.

According to annual figures collected by the Office of National Statistics (ONS) the overall level of crime has not changed over the last year but certain types of crime have increased, such as homicide (up by 6%), robbery (11%), knife crime (6%), theft (8%), fraud (12%), criminal damage to a vehicle (14%), and public order offences (19%). But there have been decreases in computer misuse (down by 28% ), arson and criminal damage (21%), burglary (3%), and firearms (2%).

Most of this information comes from police statistics or the Crime Survey for England and Wales (CSEW), and the ONS says caution should be exercised before relying on them as a complete picture.

The prospect of a new Sentencing Code to simplify and tidy up the country’s complex sentencing laws moved a step closer last month, as the government introduced a Bill in Parliament. The Sentencing (Pre-consolidation Amendments) Bill will “make amendments to the law on sentencing to facilitate the operation and enactment of the code (known as pre-consolidation amendments)” and will “provide for a ‘clean sweep’ of sentencing law”, according to a House of Lords briefing paper.

Civil litigation

CrowdJustice has launched a private fundraising platform that enables clients to raise funds in a “controlled environment”, where only the people they invite have access to their funding page, according to Litigation Futures.

CrowdJustice Private enables law firm clients to raise money from friends and family through an invite-only fundraising page. It basically sets up a funding page which the client is in charge of, but once the client hits their funding target, funds are transferred directly to the firm’s client account. Aside from the privacy issue, it is much the same as the existing, but more public crowdfunding platform.

Law Tech

Thanks for funding announced by various government departments last year, designed to promote a

“regulatory environment that gives innovative businesses the confidence to invest, innovate and deploy emerging technologies for the benefit of consumers and the wider economy”,

the Solicitors Regulation Authority (SRA) and Nesta, a government-backed technology foundation, have launched a prize fund offering grants of £50,000 for technology-based approaches to making legal services more accessible. According to Nesta’s announcement:

The Legal Access Challenge is focusing on technology innovations which improve the way that people and SMEs experience legal services, using digital technologies to make obtaining legal support more affordable, understandable and convenient. Technology can help achieve this by reducing costs through automation and presenting tailored information in an easily digestible format.

It forms part of the SRA’s wider programme to drive innovation in the legal sector. According to the Law Society Gazette,

The Legal Access Challenge has received £250,000 in government money to support ways of closing what is described as a ‘legal gap’.

Nesta, an innovation foundation set up in 1997 with National Lottery funding as the National Endowment for Science, Technology and the Arts. To coincide with the announcement, it published research shows that vast majority of people in England lack access to legal support. The initiative is also based on the premise that the great bulk of investment in ‘lawtech’ is directed at improving efficiencies and automating processes in commercial law firms rather than opening access to justice.

A discussion paper published by the Legal Services Consumer Panel advises all legal services regulators to be “proactive and creative in promoting the development of lawtech”. Entitled Lawtech and Consumers, the paper emphasises the potential for lawtech to address the access to justice gap, as well as boost competition in the legal services market.

According to its press release, the Panel has developed a checklist for regulators to use when supporting the profession and consumers in the use of lawtech. The Panel’s checklist is rooted in well-established consumer principles. 1 The Panel also highlighted the need for adequate consumer protection to bolster consumer trust and confidence in lawtech.

4 June. The government has just announced a further £2 million of government funding for legal services and lawtech. It’s not very clear from the announcement, but it seems to be funelling the new cash via the LawTech Delivery Panel of the Law Society. We assume this is in addition to the £250,000 promised to the SRA (see above) for the Legal Access Challenge.

Family law

As Rhys Taylor notes, a newly in force change in the Practice Direction 28A on costs in the Family Procedure Rules (FPR) allows the court to take into account refusal to negotiate openly as an issue of conduct in financial remedy proceedings, when considering costs. The full text of para 4.4 of PD28A now provides:

In considering the conduct of the parties for the purposes of rule 28.3(6) and (7) (including any open offers to settle), the court will have regard to the obligation of the parties to help the court to further the overriding objective (see rules 1.1 and 1.3) and will take into account the nature, importance and complexity of the issues in the case. This may be of particular significance in applications for variation orders and interim variation orders or other cases where there is a risk of the costs becoming disproportionate to the amounts in dispute.The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court. Where an order for costs is made at an interim stage the court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets.

Not everyone is a fan of the rule committee’s drafting style:

Legal professions

The High Court has held that work undertaken by a would-be barrister which was comparable to working as a paralegal could not count towards the requirement to complete pupillage in order to qualify for the Bar.

In Ekperigin v Bar Standards Board [2019] EWHC 1292 (Admin) Holman J dismissed the appellant’s appeal, under section 24 of the Crime and Courts Act 2013, against the refusal by the Authorisations Review Panel of the Bar Standards Board of his application for a complete exemption from the non-practising period (viz. the first six months) of pupillage. He relied on the fact that, having failed to secure a pupillage, he had spent more than 15 months as an employed lawyer at HB Public Law, which provides legal services for Harrow, Barnet and other London councils. According to the decision letter

“The panel determined that the work you have described is more akin to that of a paralegal than a non-practising pupil, and so is unlikely to be of a comparable level of difficulty or complexity.”

The judge said “ I approach this appeal with the utmost sympathy for his situation” and recorded with admiration that, in arguing his own case

“ the appellant has demonstrated to me his own strengths (and some weaknesses) as an advocate. He has been clear and cogent. He has demonstrated a mastery of the documents. He has displayed the utmost courtesy to the court, even when things were not going his way. These are all hallmarks of good advocacy and tend to indicate the degree of experience that the appellant has already obtained as an advocate. So, although dismissing his appeal, I can only, with sincerity, wish him good luck in the future and in his continued quest ultimately to emerge as a fully qualified practising barrister.”

The case demonstrates that there is a training gap at the Bar — which may be the fault of the institutions offering the BPTC at varying levels of cost, or the pressure on a the Bar to provide paid pupillages at levels which the industry cannot sustain. Many are called (because they have paid for the course) but few are chosen (to do pupillage). There have been calls to confine the entry to BPTC institutions to those who have already secured pupillage, either in this jurisdiction or elsewhere, or have no intention of seeking it; but this seems unduly restrictive. Aside from anything else, there are paid employments which require or would benefit from the BPTC qualification but don’t necessarily require pupillage — such as (may one point out?) law reporting.

ICLR is recruiting, by the way. (Don’t worry about the deadline, there will be another round soon: we are always interested in talented applicants.)

Dates and Deadlines

The Law Society, London — 25 June 2019

A worthy successor to Jordan Publishing’s Family Law Conference, the 2nd Annual Bloomsbury Professional Family Law Conference assembles a world-class panel of speakers, all recognised experts in their respective subjects; including Sir James Munby who addresses the afternoon session.

The conference is split between Children Law and Current Issues in Family Law, with both full day and half day tickets available. Same sex parenting, shared care, family farm divorces and working with foreign lawyers are just some of the major topics that will be presented on during the day.

Click here to view the full programme or Book online.

Applications deadline 1 July 2019

The High Court of England and Wales has launched a new Judicial Assistants (JA) scheme. Aimed in particular at recently qualified barristers and solicitors in the early stages of their legal career, applications will be invited from those able to demonstrate an outstanding intellectual ability, excellent organisational skills and the ability to manage large and complicated workloads, as well as a high level of professional integrity.

For a full job description and application form, click here.

And finally…

is by the present author, with apologies for the self-promotion, but having last week featured with a Tweet of the Day in The Times Law Brief (on a different topic), it seems fair to reciprocate by promoting an article in The Times about the Secret Barrister. And it did get quite a lot of engagement.

That’s it for this week. Thanks for reading. Watch this space for updates.

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.