Weekly Notes: legal news from ICLR, 3 October 2022

We return after the Long Vacation with a bumper roundup of legal news and commentary including new appointments in the Ministry of Justice, a new look for the judiciary, some developments in the courts and some commentary on the royal accession. Plus recent case law.

Politics

The Michaelmas law term begins today (3 October) and continues till Wednesday 21 December 2022. Meanwhile, at King Charles Academy in Westminster, it feels as though there has been a complete change of senior staff, following the appointment of Liz Truss as new head teacher. She in turn has appointed Kwasi Kwarteng as bursar, and their bold financial plans for the school, announced last week, are currently the talk of the Headteachers Conference at Birmingham. One of the most urgent matters for the school governors to discuss is how to pay the heating bill now that gas prices have gone through the roof (which needed repairing anyway). Other new appointments include Brandon Lewis as Head of Discipline and Suella Braverman as Head of Security, while Thérèse Coffey is now Head Matron and will be running the school sanatorium. There is a full list of all the new heads of department on the school noticeboard. Today’s breakfast club was held by Mr Lewis. Welcome back, everyone.

For ‘Head of Discipline’ read Lord Chancellor and Secretary of State for Justice. At his swearing in, Brandon Lewis MP paid tribute to his many predecessors:

“It is a huge honour to become Lord Chancellor and join such a long — if slightly daunting — list of names that includes Cardinal Wolsey, Sir Francis Bacon and Ken Clarke. The patron saint of statesmen and politicians himself goes before me — Sir Thomas More is also one of my predecessors.”

He might also have mentioned, among that ‘daunting’ list, the present Prime Minister Liz Truss, who served as Lord Chancellor from 2016 to 2017 for less than a year — or what the Financial Times called “an uncomfortable 11 months in the job including several high-profile clashes with the judiciary”. One of those clashes was when she failed (as required by her oath of office) to defend three senior members of the judiciary against the Daily Mail’s description of them as “enemies of the people”. This had an adverse effect on judicial recruitment, which has struggled to recover from a growing sense of simply not being valued. The same goes for the publicly funded legal professions, struggling to make up in goodwill for an insufficiently supported justice system and inadequate courts. It would be unfair to suggest that Liz Truss’s term as Lord Chancellor was exceptional in this respect: there have been six others since Ken Clarke, who instituted some of the most savage financial cuts, and none has stayed for long or been able to do much more than build on or repair some of the damage done by their immediate predecessor.

Lewis is to be praised for engaging swiftly with the barristers on strike, and a revised deal on criminal legal aid is currently being put to a ballot by the Criminal Bar Association. This is not necessarily the done deal the announcement appears to assume. The CBA described the announcement as ‘premature’ and may yet vote against it. Nevertheless, Joshua Rozenberg described it as A constructive meeting.

Lewis concluded his swearing in speech by

“reiterating my dedication to the oath I have sworn today. As I step into this ancient role, I am very, very much aware of my constitutional responsibilities, as well as my duty to the judiciary, the courts, tribunals and to justice more broadly.”

One of the benefits of his appointment is that his predecessor, Dominic Raab, who was also in office for under a year, will no longer be able to promote his Bill of Rights Bill (BORB), which had its First Reading on Wednesday 22 June 2022 but has now (to the relief of many) been dropped.

Now that Suella Braverman KC has been appointed Secretary of State for the Home Department, her role as Attorney General has been conferred on Michael Ellis KC , and Michael Tomlinson becomes Solicitor General. The department has a busy legal year ahead, the bursar’s budget permitting.

Judiciary

The Judicial Office has launched a new version of its website, Courts and Tribunals Judiciary. As well as having a complete revamp of the design, it seems to be easier to find things, with a less cluttered interface and more intelligent search forms. The sections dealing with Judgments, News and updates, and Guidance and resources each has a dedicated search form at the top, which is much clearer to use than what went before (and better, hint hint, than what The National Archives currently have on their ‘alpha’ platform, Find Case Law). It also adapts well to smaller screens, eg for phones and tablets.

The redesign was informed by a public survey earlier this year and was overseen by a Judicial Engagement Group led by Sir Adrian Fulford, former Lord Justice of Appeal and Vice-President of the Court of Appeal (Criminal Division).

One of the documents available under Courts and Tribunals is the latest edition of the King’s Bench Guide which is dated 24 January 2022 and yet, amazingly, anticipated the transition of the monarchy from Queen to King. It’s more likely that a parallel version was prepared in anticipation of the succession, or else that a rapid search and replace has been conducted and a new PDF uploaded. Many organisations have had to accommodate this transition, as well as all the Silks who’ve needed to change their titles to KC, providing work for sign painters and stationers, as well as digging out, for a while, their mourning bands and weepers.

For details of how the succession has or might affect the activities of ICLR, see Accession of King Charles III: changes affecting The Law Reports on our blog.

Another useful benefit of the new Judiciary site is that all the resources associated with the Transparency Implementation Group (TIG) set up by the President of the Family Division, Sir Andrew McFarlane, are now to found in one place. The latest document (published today) is the Family Court Transparency Implementation Group — 1st Progress Report.

A matter to be considered by one of the TIG sub-groups is the publication of family judgments, something that was urged by Sir Andrew’s predecessor Sir James Munby back in 2014, when he issued guidance urging all judges to publish suitably anonymised judgments from private hearings. While the enthusiasm of judges may vary, another obstacle has been the process of publication itself. The Transparency Project (which is not part of the TIG though some of its members are) has been monitoring this recently: What is happening with publication of Family Court judgments?

Courts

This summer, Karen — a volunteer at charity DeafCOG in London — became the first deaf person to complete jury service with a BSL interpreter at Croydon Crown Court, according to an announcement by the Ministry of Justice. Karen was also chosen as foreperson to represent the other members of the jury after deliberating on a case involving racially aggravated harassment. Another deaf juror, called Paul, also served on a serious sexual assault case at Norwich Crown Court last month, thanks to the same assistance.

The move follows changes brought in through the Police, Crime, Sentencing and Courts Act, which allow BSL interpreters into the jury deliberation room. It is expected that this will open up jury service to over 80,000 deaf people across England and Wales, removing yet another barrier to public participation in the justice process.

There has been concern over reports in a documentary highlighting problems with the massive Common Platform case management system, which is designed to allow the police, judiciary, solicitors, barristers and criminal justice agencies to access and edit case information. According to a report by File on 4, people working in the courts service have identified a number of glitches and are being forced to create workarounds to prevent injustices occurring:

“File on 4 has spoken with whistle-blowers from within the court service who say the system is unsafe, unfinished and beset with bugs, errors and glitches. Sources say early warnings were ignored and worry that the software continues to be rolled out to courts across England and Wales despite serious concerns about the risk it poses.”

The £300m IT project is now being compared to the Horizon system built by Fujitsu for the Post Office, whose unreliability led to hundreds of subpostmasters being wrongly accused of fiddling their accounts and losing their livelihoods, liberty, and even in some cases lives.

PCS: Investigation shows Common Platform is unsafe

The Times: Common platform for case records ‘so flawed it has a mind of its own’

More commentary

Recent case summaries from ICLR

A selection (there’s too many to list them all) of recently published WLR Daily case summaries from ICLR.4:

COPYRIGHT — Infringement — Broadcast: RTL Television GmbH v Grupo Pestana SGPS SA, 08 Sep 2022 (Case C-716/20); EU:C:2022:643; [2022] WLR(D) 373, ECJ

CRIME — Custody time limit — Extension: R (Director of Public Prosecutions) v Bristol Crown Court, 28 Sep 2022 [2022] EWHC 2415 (Admin); [2022] WLR(D) 382, KBD

CRIME — Practice — Trial: R v Kadir (Abdul), 21 Sep 2022 [2022] EWCA Crim 1244; [2022] WLR(D) 381, CA

CRIME — Sentence — Confiscation order: R v Wood (Niki), 20 Sep 2022 [2022] EWCA Crim 1243; [2022] WLR(D) 377, CA

ENVIRONMENT — Natural habitats — Conservation of wild fauna and flora: R (Harris) v Environment Agency, 06 Sep 2022 [2022] EWHC 2264 (Admin); [2022] WLR(D) 367, QBD

EUROPEAN UNION — Practice — European order for payment: Uniqa Versicherungen AG v VU, 15 Sep 2022 (Case C-18/21); EU:C:2022:682; [2022] WLR(D) 374, ECJ

HOUSING — Secure tenancy — Death of tenant: Dudley Metropolitan Borough Council v Mailley, 14 Sep 2022 [2022] EWHC 2328 (QB); [2022] WLR(D) 371, KBD

NEGLIGENCE — Duty of care — Scope of duty: HXA v Surrey County Council (YXA v Wolverhampton City Council), 31 Aug 2022 [2022] EWCA Civ 1196; [2022] WLR(D) 361, CA

REVENUE — Capital Gains Tax — Disposal of assets: Quentin Skinner 2005 Settlement L v Revenue and Customs Comrs, 16 Sep 2022 [2022] EWCA Civ 1222; [2022] WLR(D) 376, CA

PUBLIC PROCUREMENT — Contract award procedure — Selection criteria: Landkreis Aichach-Friedberg v Omnibusunternehmen, 15 Sep 2022 (Case C-416/21); EU:C:2022:689; [2022] WLR(D) 375, ECJ

SOCIAL SECURITY — Contributory benefit — Bereavement support payment: R (Jwanczuk) v Secretary of State for Work and Pensions, 07 Sep 2022 [2022] EWHC 2298 (Admin); [2022] WLR(D) 369, QBD

SOCIAL SECURITY — Welfare benefits — Third party deductions: R (Timson) v Secretary of State for Work and Pensions, 23 Sep 2022 [2022] EWHC 2392 (Admin); [2022] WLR(D) 380, KBD

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes (there’s too much to list it all):

Electronic Immigration Network: Court of Appeal rejects section 3C leave argument in 10 years’ continuous lawful residence claim: Marepally v Secretary of State for the Home Department [2022] EWCA Civ 855, CA

Family Law Week: Findings of sexual abuse were made against the intervenor in care proceedings that he had sexually abused his 5 year old step-daughter. He appealed the findings: In re F and G (Children) (Sexual Abuse Allegations) [2022] EWCA Civ 1002, CA

Local Government Lawyer: High Court refuses council judicial review bid over routeing of lorries to HS2 construction sites: Buckinghamshire Council v Secretary of State for Transport [2022] EWHC 1923 (Admin); [2022] WLR(D) 326, QBD

Old Square Chambers: Full leave And Full Pay for Every Worker: Brazel v Harpur Trust [2022] UKSC 21, SC(E)

Out-Law: Fire safety ruling has implications for cladding disputes: Martlet Homes Ltd v Mulalley & Co Ltd [2022] EWHC 1813 (TCC), QBD

Radcliffe Chambers: CMG Pension Trustees Ltd v CGI IT UK Ltd [2022] EWHC 2130 (Ch), Ch D

Law & Religion UK: Religion and Article 10 again: Rabczewska v Poland (Application no 8257/13), ECtHR

Nearly Legal: Mere delicacy or fastidiousness? Ray v Windrush Riverside Properties Ltd [2022] EWHC 2210 (TCC), Ch D

A Lawyer Writes: Avoid litigation like the plague: Lipton v BA City Flyer Ltd (appn all) [2022] 1 WLR 4182, SC(E)

UK Human Rights Blog: Collection and retention of personal data concerning presumed sexual orientation was a violation of Article 8: Drelon v France (Application nos 3153/16 et 27758/18); Legal summary, ECtHR

Free Movement: Dependency under EU law: education as an essential living need: Singh v Secretary of State for the Home Department [2022] EWCA Civ 1054, CA

RPC Perspectives: Purpose-based rules: Have we hit BlackRock-bottom?Revenue and Customs Comrs v Blackrock Holdco 5 LLC [2022] UKUT 199 (TCC); [2022] STC 1490, UT

ICLR news

We are currently recruiting. The ICLR is looking for a barrister or solicitor to work in its law reporter team, based on Chancery Lane and at the Royal Courts of Justice in London. We will be reviewing CVs from 17 October onwards.

For more details see https://www.iclr.co.uk/about/careers/law-reporter/

This year has been brilliant for meeting our public as conferences (particularly those lovely law librarian conferences) return to in-person events. So far we’ve been to

Bedfordshire for #BIALL2022 — Legal information by the Lake

Denver, Colorado: #AALL2022 — Denver, here we come!

Hobart, Tasmania: #ALLA2022 — Hobart, here we come!

and we’re shortly off to Stanford, California for #IALL2022, The 40th Annual Course of the International Association of Law Libraries.

And finally…

is from Prof James Lee and reveals something romantically interesting about another of Brandon Lewis’s predecessors as Lord Chancellor.

That’s it for this week. Thanks for reading, and thanks for all your tweets 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.

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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.