Weekly Notes: legal news from ICLR, 31 January 2022

Nothing to see here! Images via Shutterstock.

Politics

No 10 probe: cops come late to the party

After weeks of pretending there was nothing to justify a retrospective investigation into unlawful gatherings in breach of the Coronavirus Regulations at No 10 Downing Street, the Metropolitan Police suddenly decided that there might be. Commissioner Cressida Dick announced (just as she was about to be questioned by the Police and Crime Committee of the London Assembly last week):

“As a result firstly of information provided by the Cabinet Office inquiry team and secondly my officers’ own assessment, I can confirm that the Met is now investigating a number of events that took place at Downing Street and Whitehall in the last two years in relation to potential breaches of Covid-19 regulations.”

What prompted that “reverse ferret” (or sudden change of position) seems to have been questions asked by and information provided to Sue Gray, the senior civil servant currently conducting an internal fact-finding investigation. Back in December, the police claimed they could not investigate the alleged breaches owing to a “lack of evidence”. According to ITV (8 December 2021):

“The Metropolitan Police have confirmed that it will not investigate allegations of a party at Downing Street due to an ‘absence of evidence’. Scotland Yard said officers will not ‘commence an investigation at this time’ in line with its ‘policy not to investigate retrospective breaches’ of coronavirus rules.”

This was received with incredulity by many, who pointed to copious examples of decidedly retrospective prosecutions of ordinary people for breaches of the rules, often with massive fines being imposed, while those working (or taking part in work events) at No 10 Downing Street seemed to be getting away with it. Moreover, if the police never investigated retrospective breaches, it would be difficult to prosecute anyone. It would equally be difficult without a time machine to investigate or prosecute prospective breaches, and somewhat prejudicial to do so.

So what has changed? If the police now have evidence, it might be because more of it has emerged thanks to the more proactive investigation by the media (notably ITV and Daily Mirror reporter Pippa Crerar).

Not only have the police decided to open an investigation, but they have also decided to stifle, to some extent, the investigation by Sue Gray, asking her not to include in her published report any references to matters which might “prejudice” their own investigation. However, since the police seem to have indicated that they are investigating offences against the coronavirus regulations which are triable in a magistrates’ court and can only result in a fixed penalty notice, there seems to be no risk of prejudice to any jury trial. Most commentators, like Joshua Rozenberg (Police to investigate parties), therefore seemed to think there should be no reason for Gray to delay.

But there might be a perfectly valid explanation, said The Secret Barrister, on their blog: Why on earth would the Metropolitan Police ask Sue Gray to redact key parts of her independent report? It’s not because of the risk of prejudicing later court proceedings, even if they encompassed more serious (jury-triable) offences such as misconduct in public office; but, rather, to avoid disclosing to potential interviewees or suspects in the police investigation how much the police might already know. So the feared prejudice would be tactical rather than legal. Nevertheless, as David Allen Green observed on the Law and Policy Blog, “such investigatory convenience should not be an absolute check.”

The request did not sit well with the fact that the police have put off even beginning their investigation for so long, and seems so convenient to the Prime Minister and his staff at No 10 Downing Street, that it begins to look more like gaslighting. Scrutiny delayed is scrutiny denied.

As to whether in the end the Gray report itself would be worth waiting for, Brian Cathcart is less sanguine: see Byline Times, Sue Gray’s Inquiry, The Great Charade Exposing Our Failing Democracy

UPDATE — ‘failures of leadership’

Monday afternoon: The Cabinet Office has now published what appears to be a partial or stripped-out Gray report, rather ponderously entitled Investigation Into Alleged Gatherings On Government Premises During Covid Restrictions — Update, which contains no details of specific events, but finds, somewhat vaguely:

“At times it seems there was too little thought given to what was happening across the country in considering the appropriateness of some of these gatherings, the risks they presented to public health and how they might appear to the public. There were failures of leadership and judgment by different parts of No 10 and the Cabinet Office at different times. Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”

There was also excessive consumption of alcohol in the workplace, inappropriate use of the garden at No 10, and poor management of and responsibility for staff. And by way of next steps:

“There is significant learning to be drawn from these events which must be addressed immediately across Government. This does not need to wait for the police investigations to be concluded.”

The Prime Minister then made a statement in Parliament in which he apologised and said: “I know what the issue is, it is whether this government can be trusted to deliver and I say yes we can be trusted yes we can be trusted to deliver.” But that confuses being trusted to deliver policy commitments with being trusted to tell the truth and act honestly and honourably. Not quite the same thing.

More commentary:

Open Government

Fifth UK National Action Plan published

The UK’s fifth National Action Plan for Open Government 2021–2023 (NAP5) was published on 31 January 2022. It sets out six commitments in line with the Open Government Partnership values of transparency and openness, civic participation and public accountability.

One of them is Open Justice. Its stated aim was “to improve public access and understanding of the justice system in the context of the rapid and ongoing digitisation of courts and tribunals.” The problems identified include providing unimpeded access to hearings and to justice information, notably judgments and sentencing remarks, for observers including civil society and bloggers who “play an increasingly important role in promoting public understanding of the justice system, but in practice are not always provided the same level of access as accredited press”.

However, the milestones to fulfil the commitment were placed rather less far along the intended road than might have been hoped. Four such milestones were identified, starting in 2022, and all were described as “ongoing”.

  • Improving court data on court users, case types, and outcomes. Making this data available to researchers
  • Publication of case law (judgments and other decisions) and working towards a complete record
  • Easier access to existing information on hearings and reporting restrictions
  • Facilitating observation of remote hearings

Joshua Rozenberg, in a post on A Lawyer Writes (Open government at risk), pointed out that a number of commitments made in an earlier draft of the plan in relation to open justice had been omitted, including

  • the government’s commitment to retain and make available sentencing remarks;
  • Placing the newly created shadow Senior Data Governance Panel on a statutory footing;
  • Creating a court information user group.

The lack of ambition and reduction in scope is certainly disappointing, especially for those (including me) who participated in its formation.

Clearing House not very clear

Meanwhile, Open Democracy reported on the fact that the UK government spent £40,000 hiding secretive Clearing House unit. The government admitted that the Cabinet Office had spent tens of thousands of pounds defending proceedings in the Information Tribunal, trying to stop openDemocracy finding out about its “Orwellian” Clearing House unit which

“has been accused of blacklisting journalists and blocking their Freedom of Information (FOI) requests. Investigations by openDemocracy have revealed how it helped suppress sensitive information on issues ranging from Grenfell Tower to the contaminated blood scandal.”

The sum wasted on fruitless legal costs may seem relatively trivial but the fact that the Cabinet Office (once again) resisted scrutiny in an era of what was supposed to be more open government is chilling.

Courts

Support for vulnerable users

A new service framework will standardise support for people who need specialist communication help in order to participate in court or tribunal hearings. HM Courts & Tribunals Service says that its new Appointed Intermediary Service framework is designed to ensure fairness and quality of service for vulnerable court and tribunal users who have communication problems and disorders, by providing clear guidance and standard booking processes and by setting prices to ensure fairness and quality of service. The service will start in April 2022.

The announcement from HMCTS explained that:

“Intermediaries are communication specialists who work on behalf of HMCTS to support vulnerable users to participate in a court or tribunal hearing. They provide impartial recommendations to HMCTS about a service user’s specific communication needs and outline the steps needed to achieve them.

Legal representatives and HMCTS staff can select an intermediary from an approved list of suppliers. There are two types of suppliers— Managed and Approved Service Providers (MASP) are larger providers who manage the service on behalf of HMCTS nationally; and Approved service providers (ASP) who are usually small companies or self-employed individuals.”

Suppport for LIPs

A new report from the Ministry of Justice provides an interim update on progress made by the Legal Support for Litigants in Person Grant. LSLIP was launched by the Access to Justice Foundation and MOJ in 2019, following the government’s Legal Support Action Plan. It is currently funding 11 grant projects across England and Wales that deliver advice on a national, regional and local scale, to litigants in person at different stages of their problem within several areas of civil and family law. This interim report draws together the data and evidence collected so far, to report on progress towards the grant objectives.

“Early evidence suggests that the advice and support provided is improving client outcomes, including increasing client understanding of how to resolve their problem and increasing client confidence to take action promptly. This is helping to resolve problems at an earlier stage, before they reach court or tribunal.”

But the main reason there are so many litigants in person needing such help is, of course, the catastrophic reduction in legal aid over the last decade. Like so much of the government’s austerity programme, the savings made have proved a false economy in the longer term.

Return to plan A

The latest operational summary from HMCTS reminds court users that

“On Thursday 27 January 2022 England returned to Plan A COVID-19 restrictions. Face coverings are still required in our buildings unless you are exempt, and other safety measures will remain in place. See further advice on precautions you can take to help prevent the spread of COVID-19.”

Family law

Guidance on s 20 Children Act 1989 updated

The Transparency Project have updated their Guidance Note on the accommodation of children (‘voluntary accommodation / care’) under s 20 of the Children Act 1989 and the equivalent piece of law in Wales (s76 Social Services & Wellbeing (Wales) Act 2014).

Version 4 of the guidance, which is available from the Transparency Project website, has been updated to reflect new guidance from the Public Law Working Party which encourages the use of s20 / s76 as appropriate ways to meet the needs of children without coming to court.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

COMPANY — Shares — Transfer: Byers v Saudi National Bank (Byers v Samba Financial Group), 7 Jan 2022 [2022] EWCA Civ 43; [2022] WLR(D) 51, CA

CORONER — Inquest — Scope of inquest: R (Boyce) v Teesside and Hartlepool Senior Coroner, 21 Jan 2022 [2022] EWHC 107 (Admin); [2022] WLR(D) 42, QBD

COURT OF APPEAL (CIVIL DIVISION) — Jurisdiction — Appeal: Greetham v Greetham, 28 Jan 2022 [2022] EWCA Civ 49; [2022] WLR(D) 52, CA

CRIME — Terrorism — Wearing, carrying or displaying article showing support for proscribed organisation: Pwr v Director of Public Prosecutions, 26 Jan 2022 [2022] UKSC 2; [2022] WLR(D) 49, SC(E)

EUROPEAN UNION — Right to reside — Citizenship: R (Akinsanya) v Secretary of State for the Home Department, 25 Jan 2022 [2022] EWCA Civ 37; [2022] WLR(D) 39, CA

EXTRADITION — Secretary of State’s functions — Time limit: R (Lynch) v Westminster Magistrates’ Court, 26 Jan 2022 [2022] EWHC 142 (Admin); [2022] WLR(D) 46, QBD

INSOLVENCY — Cross-border insolvency — Recognition of foreign proceedings: Kireeva v Bedzhamov (Vneshprombank LLC v Bedzhamov), 21 Jan 2022 [2022] EWCA Civ 35; [2022] WLR(D) 37, CA

LANDLORD AND TENANT — Assured shorthold tenancy — Order for possession: Northwood Solihull Ltd v Fearn, 26 Jan 2022 [2022] EWCA Civ 40; [2022] WLR(D) 45, CA

LOCAL GOVERNMENT — Asset of community value — Local authority list: R (TV Harrison CIC) v Leeds City Council, 25 Jan 2022 [2022] EWHC 130 (Admin); [2022] WLR(D) 43, QBD

NATIONALITY — British citizenship — Deprivation; STATUTORY INSTRUMENT — Validity — Whether ultra vires: R (D4) v Secretary of State for the Home Department, 26 Jan 2022 [2022] EWCA Civ 33; [2022] WLR(D) 44, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

Nearly Legal: R(ZLL) v SSHCLG: Everyone In a “call to action” not a policy: R (ZLL) v Secretary of State for Housing, Communities and Local Government [2022] EWHC 85 (Admin), QBD

Global Freedom of Expression (Columbia University): Standard Verlagsgesellschaft mbH v. Austria (no. 3): expands expression: Standard Verlagsgesellschaft mbH v. Austria (No 3) (Application no. 39378/15), ECtHR

UK Human Rights Blog: Is “Perception-Based Recording” for hate crime compatible with freedom of speech?: R (Miller) v College of Policing [2021] EWCA Civ 1926, CA

Free Movement: Upper Tribunal revisits “marriages of convenience”: Saeed (Pakistan) v Secretary of State for the Home Department [2022] UKUT 18 (IAC), UT

Nearly Legal: No relief, no unjust enrichment: Golding v Martin [2022] EW Misc 2 (CC), County Ct

Free Movement: Stripping people of British citizenship without telling them is definitely illegal — for now: R (D4) v Secretary of State for the Home Department [2022] EWCA Civ 33; [2022] WLR(D) 44, CA

ICLR blog: Controlling and coercive behaviour: Griffiths v Tickle [2021] EWCA Civ 1882, CA

Other recent publications

Stories of Genocide: Lessons for Today

To mark Holocaust Memorial Day 2022, EachOther made this documentary featuring three survivors of genocide: one from the Holocaust, one from Bosnia and one from Rwanda. “Together, their stories are powerful reminders of the insidious ways in which rights can be eroded and how important it is we learn the lessons of the past to apply them today.”

Court of Protection Handbook Quarterly Update

The quarterly online update to the Court of Protection Handbook is now available, covering key practice and procedure updates to the text of the main volume. It includes coverage of the decision in JB — the Supreme Court takes on capacity — and of AH — judicial visits, as well as other significant developments since November 2021. We have also updated our precedent letter of instruction to an expert to report upon capacity in light of the Supreme Court’s decision in JB.

Contested heritage — A review of the Church of England guidance

In a guest post on the Law & Religion UK blog, Trevor Cooper, of the Historic Religious Buildings Alliance, looks at the issues surrounding “contested heritage” following the Black Lives Matter protests in 2020. It summarises the current position in the Church of England on memorials related to slavery, and compares it to the secular position, discussing a number of aspects that might usefully be subject to further development.

And finally…

Happy Lunar New Year

That’s it for this week! Thanks for reading, and thanks for all your tweets and links. Keep safe and well.

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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