Weekly Notes: legal news from ICLR — 30 July 2018

Courts

Open justice and economic crime

Is the fight against corruption being undermined by a lack of open justice? Corruption Watch says it is, pointing out that major corruption and fraud cases are going unreported because the press are not told about them and have no way of finding out from the courts about them.

Sparse court lists, reporting restrictions and private hearings are commonplace. They are inhibiting the ability of members of the press, civil society and academia to scrutinise and report on court proceedings.

In other cases, they say, media coverage is hampered by reporting restrictions, or by the difficulty and expense of obtaining access to documentary evidence used in court. This lack of transparency in the English court system weakens public confidence in prosecuting bodies and their efforts at anti-corruption enforcement. The time is ripe for open justice reform of economic crime court proceedings as well as the wider justice system. Unfortunately, despite the announcement of a brand new economic crime court in the City of London and the commitment of over £1bn to reform of the courts around the country, the Ministry of Justice does not seem interested in the possibilities these offer for greater transparency and openness in the system. A recent MOJ consultation on the future of the court system made no mention of the term ‘open justice’.

In a report entitled Veil of Secrecy, Corruption Watch have published a number of recommendations that would improve open justice generally:

  • Online court lists should be distributed by a government-run website, and give details of charge(s)/claim(s) in a case and the full names of both parties.
  • HMCTS should implement online systems for the press (and other parties with a legitimate interest) to be notified of reporting restriction applications and the grounds on which such applications are being sought.
  • Part 6 of the Criminal Procedure Rules should be amended to explicitly state that: a) barring exceptional circumstances, affected parties, including the media, must be notified of a reporting restriction application at least 24 hours in advance of the relevant hearing where an order limiting reporting may be imposed; and b) notification of an application must also include the grounds on which the reporting restriction order in question is being sought.
  • The UK government should take steps to make it obligatory for courts to publish judgments online, whether in audio and/or written form.
  • The Criminal Procedure Rules should be amended to allow members of the public with a legitimate interest to access documents referred to during proceedings without the need for permission from the court.
  • The introduction of an online platform for public access to key court documents in criminal and civil cases.

Further recommendations deal specifically with economic crime. They include hearing Unexplained Wealth Order proceedings in public by default, routine publication of case documents and rulings, and a notification system to warn relevant organisations of existing reporting restrictions in economic crime cases. Finally, the government should now publicly consult on how to ensure transparency and openness at the new economic crime court complex in London.

Opportunities for Reform

Some of Corruption Watch’s general recommendations are things other reporting organisations would like to see implemented too. The system for the transcription and publication of judgments by any but the most senior courts is in serious need of proper organisation, with a clear understanding of its purpose as a function of open justice (rather than yet another way of monetising public information) and improvements in public access to court documents and evidence, and in the management of listings and publication of results, though promised as part of the HMCTS Reform programme, still seem a long way off.

However, efforts have been made in some courts to organise better the logging and notification of reporting restrictions. Again, this is something that needs to be considered and managed across the board, rather than in a piecemeal court-by-court fashion. The problem may be that the HMCTS Reform programme is so focused on the idea of ‘agile’ development that it is in danger of losing sight of the bigger picture of open justice. (See, for example, the report of the Commons Public Accounts Committee, discussed by the Transparency Project here: The Progress of Reform — or lack of it. The PAC’s Transforming Courts and Tribunals inquiry report)

Family

Farewell, Sir James

The Lord Chief Justice’s court was packed with family and other practitioners on Friday morning for the valedictory of Sir James Munby, outgoing President of the Family Division and Head of Family Justice for England and Wales.

Sir James Munby (70) was called to the Bar (Middle Temple) in 1971, took silk in 1988 and was elected a Bencher in 2000. He was appointed to the High Court (Family Division) in 2000. He was appointed a Special Immigration Appeals Commissioner in 2002 and was Chairman of the Law Commission from 2009 to 2012. He was appointed a Lord Justice of Appeal and appointed to the Privy Council in 2009. He became President of the Family Division and of the Court of Protection in 2013.

As successor to Sir Nicholas Wall, Sir James continued and enlarged many of the reforms to family justice he began, including most notably the drive for greater transparency. No doubt the same will be continued further by his successor, Sir Andrew McFarlane, whom we welcome.

Parting words

It is perhaps fitting for this reforming judge, who rounded off his presidency with a flurry of practice guidance notes, that he should have followed his valedictory with a press conference, reported by the Gazette, at which he laid into the current state of the justice system and its flagrant inadequacies, saying:

‘anyone who thinks we currently have a network of courts which enables proper access to justice is deluding themselves’.

He suggested people should be more open minded about the possibilities of Skype-type video hearings, or pop-up courts in offices and local authority buildings, when all the regular courts are being shut down and travelling to the remaining ones is getting so difficult and expensive. He said:

On a recent trip to Norwich, the family chief was told someone walked 12 miles to court and back. ‘That’s the reality of our present justice system,’ he said. ‘If you ask [the mother], you have a simple choice, you can either make this journey or you can sit in your kitchen and talk to the judge on Skype. I do not know what the answer is. One thing that worries me is we have not asked people what the answer should be… What would the “customer” actually prefer. [Is it] “Actually I would prefer to walk 12 miles”? We do not ask and we should ask.’

Not everyone would agree with the way that choice has been framed. Commenting on Twitter, Penelope Gibbs of Transform Justice said this:

‘Most people wld prefer not travel but the question we shld ask is “does talking to a judge on skype affect participation and the outcomes of hearings?”. We don’t know the answer to that question. Until we know if justice is served by skype hearings, we should not be dangling the carrot of convenience in front of litigants & defendants…

Sir James in his press conference also said the system should be better adapted to litigants in person, helping them to navigate its procedures and managing their expectations, rather than expecting them to have the benefit of legal advice and guidance. In other words, the system should adapt to its users, not the users to the system. (The problem at the moment seems to be that it doesn’t work particularly well for anyone, but that’s another story.)

Reflections on Sir James’s legacy

We will let others adumbrate all the many ways in which Sir James has made (or failed to make) the system of family justice in this country better after his five years’ tenure than when he was appointed. On behalf of ICLR, we would express our gratitude, first, for his having given one of the best of our Annual Lectures, back in 2013, soon after his appointment, on the topic of ‘Marriage from the Eighteenth Century to the Twenty-First Century: some reflections on Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130’.

On a more personal note, Paul Magrath of ICLR is grateful to Sir James for having provided much of the impetus and subject matter of his book, co-authored with Lucy Reed and Julie Doughty, Transparency in the Family Courts: publicity and privacy in practice (Bloomsbury Professional, 2018).

Lucy Reed has written her own reflections on Sir James’s legacy, including his engagement with social media, in a post on her Pink Tape blog: End of an era

As for his transparency agenda, around which the book is written, it’s perhaps a little disappointing that he never got round to updating and consolidating the 2014 guidance, in accordance with his clear intentions and successive consultations on the matter; but given his caseload and the torrent of other initiatives that flowed from his office, it is perhaps not surprising that he wasn’t able to finish everything he began.

His restless energy was inspirational and it was clear from a number of tributes on Twitter that he was well liked and supported by those who worked with him behind the scenes, as well as those he engaged with in the public-facing professional sphere. In short, he was ‘fam’.

See also: Family Law Week, Pioneering President retires

Crime

Probation services

Last week the Ministry of Justice announced that its Transforming Rehabilitation probation system was being fundamentally redesigned. On 27 July the Lord Chancellor David Gauke effectively admitted that the system of partial privatisation of probation services by outsourcing lower level offender management work to Community Rehabilitation Companies (CRCs) — launched by his predecessor Chris Grayling in 2015 — had not worked well. CRC contracts are being terminated two years early, in 2020, with a view to a complete rejig of the system.

The government will be investing an extra £22m in the existing contracts in the hope of making them work better. ‘Urgent action [is] being taken to address existing issues with CRC contracts’. The areas of responsibility of CRCs will be better aligned with those in which the National Probation Service (NPS) manages more serious ex-offenders. In Wales, the plan is for all offender management will in future be handled by the NPS. Alongside the structural and contractual changes, a new professional register will be introduced, helping staff to move between roles and develop their careers.

A consultation document outlines the Ministry of Justice’s intention to ‘strengthen the supervision of offenders and increase confidence in community sentences’.

Russell Webster has commented on this on his Transforming Rehabilitation site: The End of Transforming Rehabilitiation: Re-design of probation system which includes an infographic timeline of the ‘Rise and fall of Transforming Rehabilitation’.

He has also updated his TR Resource pack.

Media law

Another Daily Mail Fiasco!

The Independent Press Standards Organisation has upheld a complaint by human rights lawyer Shoaib M Khan‏ about an article headlined “Another Human Rights Fiasco” had “serious and significant” errors. It was inaccurate and breached the Editor’s Code.

The article reported on a High Court judgment, awarding compensation to Iraqi citizens for unlawful imprisonment and ill treatment by British armed forces, during the UK’s military intervention in Iraq. According to IPSO’s ruling,

18. Central to the headline’s criticism of this case as a “fiasco” was the description in the front-page subheadline of Abd Al-Waheed as an “Iraqi ‘caught red-handed with bomb’”; in the first sentence as a “suspected Iraqi insurgent”, and in the second sentence as a man who the court ruled “was held too long by British troops despite allegedly being found making a bomb”.

19. Neither on the front page, nor in the main body of the article, was it explained that the claim that Mr Al-Waheed had been caught with a bomb had been discredited shortly after his detention or that the judgment recorded the judge’s finding that the claim he had been caught with a bomb was “pure fiction”. At the time of publication, these were no longer live allegations against Mr Al-Waheed. The judge had also found no evidence that Mr Al-Waheed had engaged in insurgent activity.

The regulator insisted, unusually, that the inaccuracies were so serious that the newspaper should be required not only to publish the adjudication on or before page 4 of the newspaper, but that it should also include a prominent reference to it on the front page. That gave it more prominence than most such adjudication rulings, but not the same prominence as the original article. The seriousness of the breach seems to have been brought home to the newspaper’s own management.

Employment

Sexual harassment in the workplace

The House of Commons Women and Equalities Committee published its report on Sexual harassment in the workplace (HC 725) on 25 July 2018:

‘In the wake of #MeToo, a wide range of employers found themselves scrambling to respond to allegations of sexual harassment in their organisations or sectors. Our concern is to ensure that, as the news cycle inevitably moves on, the urgency of action by employers and by the Government to tackle workplace sexual harassment does not wane. This report is, therefore, a call to action.’

Among the actions called for are:

  • A mandatory duty on employers to protect workers from harassment and victimisation in the workplace
  • a specific duty on public sector employers to conduct risk assessments for sexual harassment in the workplace and to put in place an action plan to mitigate those risks
  • legislation to place a positive duty on employers expressly to protect workers from harassment by third parties
  • extend the protections relating to harassment in the Equality Act 2010 to interns and volunteers
  • improve the remedies that can be awarded by employment tribunals and the costs regime to reduce disincentives to taking a case forward
  • tighter controls on the use of non-disclosure agreements (NDAs) to prevent their abuse
  • better protections for whistleblowers

Legal Aid

Justice Committee report

The House of Commons Justice Committee published its report into Criminal Legal Aid (HC 1069) on 18 July 2018. As well as addressing specific concerns of criminal practitioners (both solicitors and barristers) doing legal aid work and recent changes to the LGFS and AGFS, it also addresses the underfunding of the system as a whole and the risks that poses:

‘An effective criminal justice system which successfully prosecutes those who commit crime but which also protects the innocence of the accused unless the prosecution can prove their guilt is one of the pillars on which the rule of law is built. The effectiveness of the system also demands that the fabric of the criminal courts is properly maintained. We conclude that the under-funding of the criminal justice system in England and Wales threatens its effectiveness, and in doing so undermines the rule of law and tarnishes the reputation of the justice system as a whole.’

One of the problems highlighted is the disclosure of ‘unused material’, said to have caused serious miscarriages of justice in many recent cases, and the resources needed to deal with it properly.

‘We conclude that the pressure placed on defence lawyers to fulfil their professional obligations by reviewing unused prosecution material without remuneration is fundamentally unfair and — with the continual increase in the amount of such material — likely to become unsustainable, and increasingly prejudicial to the defendant.’

They recommend the government conduct an ‘urgent cross-departmental review of funding for all elements of the criminal justice system’.

Dates and Deadlines

Future Risk of Emotional Harm — justified grounds to remove children?

Conference organised by #CPConf2018 in conjunction with The Transparency Project. Anyone with an interest in the child protection system is welcome. The organisers hope that parents, social workers, lawyers and other professionals will find it useful.

Speakers include:

  • Sarah Phillimore — site administrator of Child Protection Resource online, considering the original justifications for reliance on ‘risk of future emotional harm’
  • ‘Annie’ — considering the parent’s perspective; blogs at www.survivingsafeguarding.co.uk — a parents guide to the child protection process
  • Professor Andy Bilson — Emeritus Professor of social work at University of Central Lancashire, discussing his recent research about adoption trends
  • Louise Tickle — journalist and ‘intelligent outsider’
  • Lucy Reed — Chair of The Transparency Project
  • Simon Howath — Academic at university of Birmingham. Previously principal social worker. Research interests include social work and social harm and fatherhood.

Venue: Conway Hall, 25 Red Lion Square, London WCIR 4RL

Time: Saturday, 15 September 2018 at 10:30 AM — 4:30 PM

Ticket information: Eventbrite

Algorithms in the Justice System: call for evidence

Law Society’s Public Policy Technology and Law Commission will examine the use of algorithms in the justice system in England and Wales and what controls, if any, are needed to protect human rights and trust in the justice system. They are calling for written evidence from all interested parties including practitioners, academics, tech professionals, civil liberties organisations, companies that make algorithms, public bodies that use them, and anyone who has an interest in technology, the rule of law and human rights. The Commission held its first public hearing session on 25 July and will be holding two more, on 12 November 2018 and in January 2019.

Obituary

Lord Browne-Wilkinson

The former senior Law Lord, Baron Nicolas Browne-Wilkinson of Camden, died on 25 July 2018. He was 88. An obituary in The Times (£) describes him as an establishment man with a liberal conscience, vigilant against state surveillance, a stout defender of the free press and an independent judiciary. He was called to the Bar in Lincoln’s Inn in 1953 and served as a judge of the Chancery Division, and then as a Lord Justice of Appeal, before being appointed Vice-Chancellor and eventually a Lord of Appeal in Ordinary.

Among the more prominent cases he was involved in as a judge are cited the Spycatcher appeal, Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248 (in which he ruled that three newspapers were not in contempt of court for publishing material about Peter Wright’s unauthorised account of his secret service activities), the Bland case [1993] AC 789 (permitted disconnection of artificial nutrition of a Hillsborough victim in a persistent vegetative state) and the trio of Pinochet appeals [2000] 1 AC 61; [2000] 1 AC 119 and [2000] 1 AC 147 (on the extradition of the former Chilean dictator, the second decision setting aside the first on grounds of a risk of apparent judicial bias, and the third restating its conclusion). ICLR has reported them all and many other notable cases, including

Westdeutsche Landesbank Girozentrale v Islington LBC [1996] UKHL 12; [1996] AC 669 (on local government and financial services)

Wilsher v Essex Area Health Authority [1987] QB 730 (on medical negligence)

Arnold v National Westminster Bank plc [1989] Ch 63 (on issue estoppel)

That’s it for this week. Thanks for reading, and thanks for all the tweets and blogs and the links to content from which this post was derived.

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.

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