Weekly Notes: legal news from ICLR, 30 January 2023
This week’s roundup of legal news includes police criminality, transparency in the family courts and Court of Protection, judicial conduct, and pending legislation. Plus new case law and commentary.
Ill Met by sunlight
Commissioner Sir Mark Rowley has vowed to clean up the Metropolitan Police, whose reputation has been infected by a succession of so-called “bad apples” — officers found to have committed sexual and violent offences or to have conducted themselves in abusive and prejudicial ways and, in short, not behaved in a manner worthy of their responsibility to protect the public from harm. Visibly shining a light on such problems will inevitably contribute further to a decline in public confidence, at least in the short term — but perhaps not as much as doing nothing, or doing something behind closed doors — since the barrel, infected or otherwise, will inevitable yield up further apples found to be rotten to the core. And sunlight is, as they say, the best disinfectant.
A somewhat graphic demonstration of this pomaceous metaphor occurred when, on 20 January, the women’s charity Refuge dumped more than 1,000 imitation “bad apples” outside the Met’s headquarters, New Scotland Yard. The fake apple installation was intended to highlight the scale of abuse allegations involving officers. According to the BBC, the Met is currently reviewing previous allegations of violence against women and girls made against 1,071 police officers and staff members. Recent news bulletins have featured anonymised interviews with women victims of sexual and violent abuse by police officers, some of it also domestic abuse where the victims were partners of the officers concerned. It’s evident that they not only abused their position as officers to commit the offences, but also to intimidate their victims into not reporting it. And that other officers, who must have known about it, turned a blind eye (or closed ranks) as the saying goes.
Victims have been encouraged (if somewhat warily) to speak out after the recent conviction of former police officer David Carrick, who admitted dozens of rapes and sexual offences against 12 women over the course of a long career in the police. Although he had been the subject of complaints to the police dating back to 2002, his case was properly investigated only after one of his victims was prompted to report him in 2021 following publicity about the case of another serving officer, Wayne Couzens, for the abduction, rape and murder of Sarah Everard. Both officers had not been properly vetted and the fear is that, with the current recruitment drive aimed at restoring numbers following a decade of savage cuts, there will be many more unsuited candidates enabled to abuse their position to commit similar or indeed other types of offence.
Emma Guy, of Each Other, points out that 15 Met officers have been convicted of serious offences since the murder of Sarah Everard in 2021, and asks: How Deep Does Misogyny Run in the Metropolitan Police? As well as misogyny, the Met have been accused of racism and homophobia. (An attempt some years ago by the former Metropolitan Police Commissioner to reject the label of “institutional racism” applied to the Met by the Macpherson Inquiry report in 1999 proved counterproductive, as yet more examples appeared to prove the point.)
Sir Mark Rowley, who took over as Metropolitan Police Commissioner in September 2022, recently told a meeting of the London Assembly that the “majority of our people are really good people” but that he has been “very clear” that the issue is more than “a few bad apples”. According to a report in Byline Times, he admitted that there were “two or three officers going to court for criminal cases” in most weeks, for offences that “tend to be a mix of dishonesty, violence, and violence against women and girls offences — domestic abuse, sexual offences”. Due to backlogs in the criminal justice system, it could be years before some of the criminal allegations against Met staff identified in the current review reach court.
This means we can expect a drip feed of infamy, which isn’t going to boost confidence, but it seems clear that doing nothing is no longer the option it might, for the last two decades, have seemed.
Reporting pilot launched
On Monday 30 January 2023, the Transparency Implementation Group Reporting Pilot will launch in Cardiff, Leeds and Carlisle. According to the announcement via the Judiciary website,
“the aim of the pilot is to introduce a presumption that accredited media and legal bloggers may report on what they see and hear during family court cases, subject to strict rules of anonymity. The ability to report is being piloted to make sure it can be done safely and with minimum disruption to those involved in the cases, and the courts. This will be done through judges in these Courts making a ‘Transparency Order’, which sets out the rules of what can and cannot be reported.”
The launch was celebrated with an event in Coram Chambers on Thursday, 26 January, where the President of the Family Division, Sir Andrew McFarlane, explained the thinking behind it and how it had been conceived as part of the implementation of his 2021 Transparency Review. Its aim was to understand the impact of open reporting and to enhance public confidence, whilst at the same time firmly protecting continued confidentiality. He said he hoped to conduct an evaluation of the pilot, which was due to last for a year, and that reporters and bloggers would continue to participate after what might turn out to be an initial flurry of interest and would find it worthwhile.
He also hoped that there might be some way of improving the listing of cases, despite the current limitations in the available software, to enable reporters and bloggers to get a better idea of what cases were about before investing in the time and effort of covering them. (Court listing, a subject of frequent complaint, is one of the projects in HM Courts and Tribunals’ Reform project.)
The President noted that one case under the pilot had already delivered an initial judgment: Re BR (Transparency Order: Finding of Fact Hearing)  EWFC 9, Fam Ct (Poole J).
The Transparency Project is holding a training session by zoom on Thursday 2 February, and has issued (for judges and professionals) a New Guidance note — What to do if a reporter attends your hearing.
Louise Tickle via The Bureau of Investigative Journalism has also created a very helpful micro-site with advice for reporters, family members and lawyers on the operation of the pilot: What you need to know about reporting on the family court system
Court of Protection
More transparency: the voice of P
The Open Justice Court of Protection blog has published an interview with “P” (referred to as JH, the person at the centre of the case) about his experience of a hearing before Hayden J in the Court of Protection, in which the judge upheld the validity of an Advance Decision (refusing medical intervention) made by JH. A family member provides some background, and the judgment has been published: NHS Surrey Heartlands Integrated Care Board v JH  EWCOP 2.
In ‘Vindicated!’ The experience of P in the Court of Protection, Celia Kitzinger explains some of the ethical issues around her publication of the interview, which was conducted by a member of JH’s family:
“I have no reason to doubt that JH has capacity to decide to tell his own story in public and to give consent to publication. In the published court judgment of his case there is no finding of lack of capacity in any domain. He was found to have capacity to litigate, and did so as a Litigant in Person during a hearing of several hours.
He chose to contribute via an ‘interview’ with a family member. I was reminded (thank you Daniel Cloake aka @MouseInTheCourt) of the BBC Guidance on working with (potentially) ‘vulnerable’ contributors or anyone who might be at risk of harm as a result of contributing their story. I’ve read and discussed this guidance with NB, who is JH’s cousin and ‘interviewer’. She supported JH to tell his story, and will provide ongoing support after it is published.”
For JH, the process of telling his story for this blog post was (he says) “empowering”. He had felt “hounded” by health professionals who wanted to investigate his eating and digestive problems, and had made an Advance Decision about refusing consent to invasive treatment. However, it seems that his experience of the court process was a good one:
“The judge didn’t interrupt me. He gave me time to talk, time to explain things. He listened and took notice of me. He came across as very genuine and understanding of my difficulties. It felt like he was really listening to me and my voice.”
The outcome, too, seems to have been satisfactory:
“The judge said that my Advance Decision was completely valid and that when I made it, I had capacity. He said (about the date) that many people make mistakes on paperwork. As far as he was concerned, what I do from this day onwards is no one else’s business but my own. The judge asked if I would like to say anything and I said, yes I would. I said, thank you for your time, your patience, for listening to me and respecting my wishes. Then it was all over. I was a free man, vindicated.”
Statement of Judicial Behaviour
The Courts and Tribunals Judiciary website has published a statement setting out the standards of behaviour expected from all judicial office holders in and outside the hearing room; with each other, staff and users. It says:
“Treating people fairly, with courtesy and respect is reflected in our oath to ‘do right to all manner of people… without fear or favour, affection, or ill will.’
We all have a responsibility to help foster a positive working environment, where diversity is recognised and valued, and everyone is treated with dignity and respect. We are one judiciary; no-one should feel that they are perceived as ‘less than’ because of their differences, personal or professional background, judicial office or jurisdiction.”
The statement is intended to build on existing guidance in the Guide to Judicial Conduct (2020 rev) and encourages judicial office holders to admonish or report colleagues who fall short of the standards identified. It says support is available through nominated judicial office holders, judges with portfolio responsibility for welfare, HR Advisors and the Judicial Helpline.
Economic Crime and Corporate Transparency Bill
The government has published a factsheet on the Bill, explaining its main purposes and effects. One of them is long overdue reform of Companies House and its powers to check the identity of company directors and work with other agencies to protect people from fraud and other abuses of corporate identity.
The Bill will also strengthen anti-money-laundering powers and provide additional powers to law enforcement in seizing and recovering cryptoassets which are the proceeds of crime or associated with illicit activity such as money laundering, fraud and ransomware attacks.
The importance of giving important legislation very dull names, says David Allen Green is to avoid it generating the sort of controversy that has dogged Dominic Raab’s attempt to reform the Human Rights Act.
“Had Raab gone for a bill with such a boring title it may even now been an Act. But he went for perhaps the most portentous title for legislation he could think of — other than Magna Carta II — and so looks like he will have no legislation passed at all.”
“Raab wanted to evoke and allude to the Bill of Rights of 1688–89 when all he was doing was fiddling around at the margins of how the European Convention on Human Rights was given effect in English law. Had he been content with a more drab descriptive title, he may now have a legislative achievement to chalk up against his name.”
Raab’s hapless BORB (Bill of Rights Bill) is also the subject of some politely scathing comments by his predecessor as Lord Chancellor, Robert Buckland MP QC, in an interview on the podcast Double Jeopardy (episode 20) that also embraces the rule of law, constitutional change, barristers’ pay and the parlous state of the criminal justice system.
Other problems with legislation
Another recent interview on the Double Jeopardy podcast was with Lord Pannick KC, who identified three increasingly common problems with recent legislation:
- The use of so-called Henry VIII powers enabling ministers by secondary legislation to amend or repeal primary legislation, a good example being the recent Retained EU Law (Revocation and Reform) Bill.
- The drafting of “skeleton Bills” which set out broad objectives leaving the drafting of details to be filled in later: this makes it hard to debate the Bill meaningfully in Parliament. The Strikes (Minimum Service Levels) Bill, which left ministers to fill in the blanks, was an example of that.
- The conferral on ministers of extremely broad powers, which were likely to have a chilling effect on rights. An example was a proposal in the National Security Bill, which deprived anyone convicted of terrorism thereafter being eligible for civil legal aid. All too often this was “gesture legislation” intended to play well with the media and voters but likely to have unintended consequences in practice.
Other recent items
- In Considering the Time Element in Law, Sarah Sutherland, via Slaw, muses on the changing significance of cases and laws over time, and the usefulness of knowing their historical context; and visits Temple Church to learn about Magna Carta (and the declining significance of The Da Vinci Code) after lunch (in Lincoln’s Inn) with the present author.
- Statement regarding the death of Thulani Maseko, Eswatini, from the Commonwealth Lawyers Association, condemns the brutal assassination of human rights lawyer and pro-democracy activist Thulani Maseko, who was gunned down by masked gunmen in his home in Eswatini (formerly Swaziland) on 21 January 2023. Thulani’s death also follows a deadly crackdown on of pro-democracy protests in the country in June 2021.
- Re-Launch of Middle Temple Library’s Newsletter, now titled ‘The Scribbler’, covering updates on new services, resources, features and events of the library, three times a year.
- God on your side: Christians, courts and culture wars, podcast from Tortoise Media about The Christian Legal Centre, which has been behind some of the most tragic cases in the British courts (such as those of Alfie Evans and Archie Battersbee) helping parents fight against hospitals in (end of) life support cases. Who are they, asks Rachel Ellis, and what do they want?
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
COMPETITION — Abuse of dominant position — Exclusionary effect on market: Unilever Italia Mkt Operations Srl v Autorità Garante della Concorrenza e del Mercato, 19 Jan 2023 (Case C-680/20); EU:C:2023:33;  WLR(D) 36, ECJ
CRIME — Costs — Power to award: Csoka v Lord Chancellor, 18 Jan 2023  EWHC 54 (KB);  WLR(D) 37, KBD
CRIME — Proceeds of crime — Criminal property: R (World Uyghur Congress) v Secretary of State for the Home Department, 20 Jan 2023  EWHC 88 (Admin);  WLR(D) 42, KBD
DAMAGES — Assessment — Mixed injury: Rabot v Hassam, 20 Jan 2023  EWCA Civ 19;  WLR(D) 35, CA
NATIONAL HEALTH SERVICE — Healthcare services — Provision of services: R (AA) v NHS Commissioning Board, 16 Jan 2023  EWHC 43 (Admin);  WLR(D) 34, KBD
NATIONALITY — British citizenship — Acquisition: R (Roehrig) v Secretary of State for the Home Department, 20 Jan 2023  EWHC 31 (Admin);  WLR(D) 38, KBD
POLICE — Remuneration — Overtime: Prior v Comr of Police of the Metropolis (Fielding v Comr of Police of the Metropolis), 19 Jan 2023  EWCA Civ 32;  WLR(D) 31, CA
PRACTICE — Parties — Representative action: AerCap Ireland Ltd v AIG Europe SA, 25 Jan 2023  EWHC 96 (Comm);  WLR(D) 40, KBD
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
HSF Litigation Notes: Court orders contempt proceedings to be brought in respect of possible breaches of embargo on draft judgment: Wright v McCormack  EWHC 3343 (KB), KBD
UK Supreme Court Blog: Case Comment: DCM (Optical Holdings) Ltd v Revenue and Customs Comrs  UKSC 26;  1 WLR 4815;  STC 1900;  WLR(D) 398, SC(Sc)
RPC Perspectives: Tribunal rejects mixed use relief argument but allows SDLT appeal on the basis that multiple dwellings relief is available: Ridgway v Revenue And Customs  UKFTT 412 (TC), FTT (TC)
UK Supreme Court Blog: New Judgment: Barton v Gwyn-Jones  UKSC 3, SC(E)
Local Government Lawyer: The CIL appeal in Braithwaite: R (Braithwaite) v East Suffolk Council  EWCA Civ 1716;  WLR(D) 11, CA
Legal Futures: Court orders judge’s recusal due to “business association” with defendant: Ryan & Anor v HSBC UK Bank Plc & Anor  EWHC 90 (Ch), Ch D
Tanfield chambers: Dispositions of equitable interests in the digital age: Hudson v Hathaway  EWCA Civ 1648;  WLR(D) 513, CA
Electronic Immigration Network: Does a child born to an EU national exercising free movement rights automatically acquire British citizenship?R (Roehrig) v Secretary of State for the Home Department  EWHC 31 (Admin);  WLR(D) 38, KBD
UK Human Rights Blog: Good enough for jazz: how well does the government need to understand its Paris Agreement obligations? A case of emissions and omissions: R (Friends of the Earth) v Secretary of State for International Trade  EWCA Civ 14;  WLR(D) 22, CA
Free Movement: Case disposed of in error after Secretary of State fails to comply with court directions: The Secretary of State for the Home Department v SSGA  UKUT 12 (IAC), UT
Free Movement: High Court gives green light to appeals in Rwanda challenges: R (AAA) v Secretary of State for the Home Department (Rwanda)  EWHC 55 (Admin); Press summary, DC
Transparency Project: Observations on a case about suspected fabricated illness under the new reporting pilot: Re BR (Transparency Order: Finding of Fact Hearing)  EWFC 9, Fam Ct
UK Supreme Court Blog: Case Preview: Republic of Mozambique v Privinvest Shipbuilding SAL: Permission to appeal to Supreme Court given
RPC Perspectives: The scope of a solicitor’s duty to third parties in the spotlight again: Ashraf v Lester Dominic Solicitors & Ors  EWCA Civ 4, CA (Civ)
Free Movement: Permission needs to be properly sought for video link evidence from abroad: Raza v Secretary of State for the Home Department  EWCA Civ 29, CA (Civ)
Local Government Lawyer: Court of Protection judge gives suspended jail sentence to mother of P: Sunderland City Council v Macpherson  EWCOP 3, Ct of Protection
Law Society Gazette: Court rejects costs budgeting plea on child’s clin neg claim: CXS v Maidstone and Tunbridge Wells NHS Trust  EWHC 14 (KB), KBD
Dates and Deadlines
High Court Judicial Assistants (JA) scheme
Applications open from 13 February 2023 at 9am
Applications for the salaried post of Judicial Assistants, who are assigned to work with a High Court judge in any division, will be invited from recently qualified barristers and solicitors in the early stages of their legal career able to demonstrate effective decision making, excellent communication skills, the ability to deliver at pace, as well as a high level of professional integrity. There are 13 positions open and the salary is £30,389. Application submission closing date: 24 February 2023, 11.55pm. Further details via the Judiciary website.
Tweet of the week
Needs no citation:
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.