Weekly Notes: legal news from ICLR, 4 April 2022

Star Ferry crossing Hong Kong harbour (photo Jimmy Chan via Pexels)

Judiciary

British judges leave Hong Kong

The two current Supreme Court Justices who were also serving on Hong Kong’s Court of Final Appeal have now resigned. A statement issued on 30 March by Lord Reed of of Allermuir, who is also President of the UK’s apex court, said that he and Lord Hodge, the Deputy President, had “submitted our resignations as non-permanent judges of the HKCFA with immediate effect”. He explained:

“The judges of the Supreme Court and its predecessor, the Appellate Committee of the House of Lords, have sat on the Hong Kong Court of Final Appeal (HKCFA) for many years in fulfilment of the obligations undertaken by the government towards Hong Kong in 1997. They have done so with the support of the government, and in the light of the government’s assessment that their participation in the HKCFA was in the UK’s national interests.

However, since the introduction of the Hong Kong national security law in 2020, this position has become increasingly finely balanced.

The courts in Hong Kong continue to be internationally respected for their commitment to the rule of law. Nevertheless, I have concluded, in agreement with the government, that the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression, to which the Justices of the Supreme Court are deeply committed.”

The decision was welcomed in a statement by the Foreign Secretary Liz Truss MP, who said that China has used the National Security Law imposed in 2020 to

“undermine the fundamental rights and freedoms of the people of Hong Kong. These rights and freedoms were set out in the Joint Declaration agreed between the UK and China in 1984. China’s actions include restrictions on freedom of expression, the stifling of opposition voices, and the criminalising of dissent. The National Security Law also violates the high degree of autonomy of executive and legislative powers and independent judicial authority, provided for in the Joint Declaration.”

The Lord Chancellor Dominic Raab MP also supported the move, saying:

“our assessment of the situation in Hong Kong is that it has shifted too far from the freedoms that we hold dear — making free expression and honest critique of the state a criminal offence.”

It might be pointed out that the UK government is itself in the process of undermining the fundamental rights and freedoms of the people of the United Kingdom, with its plans to repeal the Human Rights Act and replace it with a more restrictive British Bill of Rights, and to limit public protest under the Police, Crime, Sentencing and Courts Bill.

It should also be noted that another six former Law Lords from the UK have said they will continue to serve on the Hong Kong apex court, saying that their presence will help maintain judicial independence and respect for the rule of law. Lord Phillips of Worth Matravers, Lord Neuberger of Abbotsbury, Lord Sumption, Lord Walker of Gestingthorpe, Lord Collins of Mapesbury and Lord Hoffmann issued a joint statement saying it was “more than ever important to support the work of [Hong Kong’s] appellate courts in their task of maintaining the rule of law and reviewing the acts of the executive”. Three Australian High Court judges, former Justices Gummow, Gleeson and French, and former President of the Canadian Supreme Court Beverley McLachlin have also said they would remain.

Perhaps it would be too much to hope that if they are allowed to sit on an appeal concerning the National Security Law, they might take the opportunity to read it down or declare its incompatibility with the Basic Law and constitution of the Special Administrative Region.

International Law

War crimes trial begins

While the world watches in horror as tales unfold of fresh atrocities in the wake of retreating Russians around Kyiv, the International Criminal Court in The Hague is about to start hearing the trial of war crimes allegations against former Janjaweed militia leader Ali Muhammad Ali Abd-Al-Rahman. (Reuters: First ICC trial addressing Darfur war crimes to open)

The allegations relate to the Darfur conflict in 2003–2004 when mostly non-Arab rebels took up arms against Sudan’s government. The United Nations says 300,000 people were killed and 2.5 million people were displaced in the 2003–4 Darfur conflict. Abd-Al-Rahman, also known as Ali Kushayb, is said to have been a senior commander of thousands of pro-government Janjaweed fighters. After voluntarily surrendering to the ICC in June 2020 after 13 years on the run, he now faces 31 counts of war crimes and crimes against humanity, including persecution, murder, rape and torture in a trial due to begin on Tuesday, 5 April.

Courts

Employment Tribunals

The respective Presidents for Employment Tribunals for England and Wales, and for Scotland, Judge Barry Clarke and Judge Shona Simon, have issued their updated Road map for 2022–23 for listing and hearing cases in the two Employment Tribunal jurisdictions in the face of challenges presented by the Covid-19 pandemic.

They recognise that many aspects of the service are still far from perfect, including the high staff turnover and long waiting times, and the frustrating lack of data on system performance generally (“ECM, the new case management system for Employment Tribunals introduced by HMCTS in the spring of 2021, has so far failed to produce reliable management data”). Despite this, there are many positives to report. “ The adaptability of the Employment Tribunals judiciary has been shown by the high number of hearings taking place on video, and which would otherwise not be taking place”, they say. Covid restrictions mean that most cases will continue to be heard remotely.

Employment tribunals are now in the grip of the HMCTS Reform programme, which across the entire courts and tribunals estate has been transforming processes based on paper files and emails into a comprehensive online process using the same case management and video hearings tools as have been rolled out (not without hitches) in the criminal and civil courts over the last few years. The reforms involving ETs will be rolled out in stages.

Protected characteristics data

HM Courts and Tribunals Service have published a report summarising responses to the Protected Characteristics Questions (PCQ) collected for reformed HMCTS services between April and September 2021. They say:

“This is the first time this information has been published and we welcome feedback on the format while we confirm plans for regular, future publications. This report reflects the intention for transparency highlighted in our recently published data strategy.”

The questionnaire covers the following characteristics and questions were aligned with ONS standards to enable comparisons with equivalent data from other sources:

  • main language
  • religion
  • date of birth
  • ethnicity
  • disability
  • pregnancy
  • sexual orientation
  • sex
  • gender
  • marital status

The questionnaire is voluntary and presented to users while they are making their application or responding to an existing case, via digital channels.

Family law

Controlling and coercive behaviour

While the civil (secular) law is making divorce easier, with the implementation this month of so-called “no-fault” divorce under the Divorce, Dissolution and Separation Act 2020, problems remain with religious marriages which can’t or won’t be dissolved. Last week a Jewish man who refused to grant his wife a “Get” after they had been divorced in a family court was jailed for coercive and controlling behaviour, having pleaded guilty to a private prosecution brought by the wife.

In Moher v Moher [2019] EWCA Civ 1482; [2020] Fam 160, the Court of Appeal affirmed the judge’s order that the husband to pay the wife maintenance pending suit until decree absolute and thereafter until he had taken steps to obtain the grant of a Get. The husband had objected that a Get obtained by compulsion is invalid in Jewish law. However, the court had jurisdiction to make a financial order pending its grant, leaving it to the husband to decide how to respond.

The wife’s private prosecution against him in Southwark Crown Court for coercive and controlling behaviour was not limited to the refusal of a Get (which the BBC defines as “a document that records a divorce in Judaism — meaning she was unable to remarry, have more children or enter into a relationship with another man”). She also alleged that the husband had

“used or threatened her with violence causing her to fear for her own personal safety on two or more occasions; exercised unreasonable financial control, including by obstructing any financial settlements ordered”.

Jailing the husband for 18 months, Judge Martin Beddoe said: “You sought to manipulate and control her all in the knowledge that it would substantially impact her mental health and in some respects also impact her physical health.” He also ordered the husband to pay £11,000 towards the prosecution costs.

Legal Information

ILBF law undergraduate essay competition

The International Law Book Facility essay competition for undergraduate law students has been won by Jude D’Alesio, from the University of Bristol, whose prize will be undertaking a week’s internship in the London office of international law firm Brown Rudnick over the summer. The result was announced by two of the judges, Lord Thomas of Cwmgiedd and Professor Richard Susskind OBE, in this short film.

The ILBF is a charity that provides good quality second hand legal textbooks, donated by the UK legal community, to not-for-profit organisations in need of legal research resources across the globe. Since 2005 it has sent over 75,000 books to more than 200 not-for-profit organisations in 54 countries across Africa, Asia, South America, Caribbean, Europe and the Pacific.

Find out more: What is the ILBF and what does it do?

Media

Fake news, parodies and April fools

David Allen Green makes a good point in a recent post on his Law and Policy Blog, April Fools Day in an age of Fake News and Hyper-Partisanship: “April Fool’s Day in part presupposes a core trusted media, where one can be playfully topsy-turvey with the actualité.”

When it comes to publishing something that seems plausible but is actually a prank, it only works if people might actually fall for it. In an age of fake news and parody accounts, it has become normal for readers to filter content for signs of falsity. That’s not to say some genuine accounts may not also publish content that is so absurd, most readers assume it must be a joke. Other accounts seek to confuse simply by offering multiple “alternative” versions of something, making it that much harder to distinguish the genuine and true.

For a number of years ICLR published spoof posts on April Fool’s Day on its blog. We doubt anyone took them seriously, but some of them were intended to take a satirical swipe at some of the true things going on in the legal world. Others were just having a laugh at the expense of certain things we lawyers hold dear.

1 April 2019: ‘Right to buy’ to be extended to prisoners

1 April 2018: “McKenzie Night” and “Bar Snacks” among radical plans for shakeup of Inns of Court dining traditions

1 April 2017: Gavels to be used in English courts

1 April 2016: Current awareness — legislation

1 April 2015: Essential Legal Kit

1 April 2014: Privatised civil justice — how it might look

The last one we did was in 2020 by which time, plunged into the first of what turned out to be a series of frightening covid lockdowns, the formula had begun to seem a bit tired. The Social-Distancing Compliant White Book Charity Relay Reading Challenge 2020 was an attempt to make light of a dire situation, but quite frankly you had to be in the zoom where it happened.

This year there were a few stalwart goes to revive the formula. Legal Cheek had a piece, EXCLUSIVE: Law firm launches ‘work bus, which they have since prominently labelled “April Fool!” — which may say something about the credulity of their readers or the level of spoof in their regular content. Meanwhile, over on Twitter, a “top QC” released an informal new Practice Direction:

and David Allen Green promoted himself by tweeting (he’s since deleted it) that, “contrary to my long-standing absolute and principled objection to the gods-awful and professionally divisive QC system, I had the honour of accepting appointment as a QC”. Not everyone who congratulated him did so with a tongue in their legal cheek, which was why he wrote the blog post cited above.

The tradition hasn’t died out completely, but it’s perhaps best not done out of a sense that it ought to be done or that some tradition must at all costs be maintained. In its day, it was a thing (but maybe that was back in 2017).

Recent case summaries from ICLR

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

CONFLICT OF LAWS — Jurisdiction under Council Regulation — Matrimonial matters: Manetta v DeFilippo, 29 Mar 2022 [2022] EWCA Civ 409; [2022] WLR(D) 144, CA

CONFLICT OF LAWS — Sovereign immunity — Members of sovereign’s household: Zu Sayn-Wittgenstein-Sayn v HMJuan Carlos Alfonso Víctor María de Borbón y Borbón, 24 Mar 2022 [2022] EWHC 668 (QB); [2022] WLR(D) 143, QBD

COPYRIGHT — Authors’ rights — Reproduction: Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH v Strato AG, 24 Mar 2022 (Case C-433/20); EU:C:2022:217; [2022] WLR(D) 145, ECJ

FINANCIAL SERVICES — Regulated and prohibited activities — Financial promotion: Financial Conduct Authority v Ferreira (Financial Conduct Authority v Skinner), 25 Mar 2022 [2022] EWCA Civ 397; [2022] WLR(D) 142, CA

PLANNING — Development — Marine licence: R (Tarian Hafren Severn Shield CYF) v Marine Management Organisation, 24 Mar 2022 [2022] EWHC 683 (Admin); [2022] WLR(D) 141, QBD

POLICE — Discipline — Misconduct: R (Ali) v Police Appeals Tribunal, 18 Mar 2022 [2022] EWHC 646 (Admin); [2022] WLR(D) 140, QBD

SOLICITOR — Discipline — Disciplinary tribunal: Greene v Davies, 29 Mar 2022 [2022] EWCA Civ 414; [2022] WLR(D) 147, CA

WILL — Validity — Testamentary capacity: Hughes v Pritchard, 24 Mar 2022 [2022] EWCA Civ 386; [2022] WLR(D) 146, CA

Recent case comments on ICLR

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

UK Supreme Court Blog: Case Comment: Commissioners for Her Majesty’s Revenue and Customs v NCL Investments Ltd and another [2022] UKSC 9, SC(E)

RPC Perspectives: Gin-uine use? The UKIPO concludes yes, despite limited evidence and variances between the trade mark as registered and as used: In re Master’s London Dry Gin Trade Mark (UK00811128694) (Application to revoke) Decision (PDF), IPO

Catholic Herald: It is time for some self-reflection at Jesus College, Cambridge: In re The Rustat Memorial, Jesus College, Cambridge [2022] ECC Ely 2, Const Ct

RPC Perspectives: Tribunal confirms that certain studies and project management costs relating to offshore windfarms qualify in part for capital allowances: Gunfleet Sands Ltd & Others v HMRC [2022] UKFTT 35 (TC), FTT

NIPC Law: Practice — Neurim Pharmaceuticals (1991) Ltd v Generics UK Ltd (t/a Mylan) [2021] EWHC 2198 (Pat), Ch D

Law & Religion UK: Refusal of registration again: Jehovah’s Witnesses in the NKR v Armenia: Christian Religious Organization of Jehovah’s Witnesses in the NKR v Armenia (Application no. 41817/10); [2022] ECHR 251, ECtHR

GAVC Law: Klifa v Slater. Post Brexit, a forum non challenge (for the courts of France) rejected ia on the basis of costs recovery: Klifa v Slater [2022] EWHC 427 (QB), QBD

RPC Perspectives: No judicial review for FOS defined benefit transfer case: R (Portal Financial Services LLP) v Financial Ombudsman Service Ltd [2022] EWHC 710 (Admin), QBD

UK Supreme Court Blog: Case Comment: In re T (A Child) (Association of Lawyers for Children intervening) [2021] UKSC 35; [2021] 3 WLR 643; [2021] WLR(D) 428; The Times, 16 August 2021; Press summary, SC(E)

Other recent publications

Court judgments get a new home… with café, onsite lake and lounging opportunities for law students

Polly Botsford on Legal Cheek welcomes the new facilities for legal research at Kew when, later this month, The National Archives launches its new national database of judgments for the courts and tribunals of England and Wales. As the piece points out, it won’t have absolutely everything, just yet, but it will contain documentary records of some classic historic cases which were previously only available behind paywalled platforms.

Accessing, Documenting and Preserving Information on Ukraine

Law librarian Marcelo Rodriguez (who teaches Foreign, Comparative and International Legal Research at the University of Arizona College of Law) explains in a post on SLAW how, when it comes to the current Russian invasion of Ukraine, there are three situations which he’s following very closely: accessing trustworthy information, documenting what is happening, and the preservation of information. To take just one example: he describes, one can use the Wayback Machine to access archived internet pages for Ukrainian court websites that are currently unavailable.

FCA consultation on British Steel redress scheme published

David Allinson and Robert Morris, partners of Reynolds Porter Chamberlain, comment via the RPC Perspectives blog on the FCA’s long awaited consultation paper on the proposed industry wide past business review of transfers from the British Steel Pension Scheme (BSPS) under s.404 of Financial Services and Markets Act 2000. The consultation will close on 30 June 2022 with a policy statement (and the scheme rules) being published in autumn / winter. However, the high-level proposals for redress calculations will require a response by 12 May.

Why our politicians can’t fix the internet

Benedict Evans in The Times on why the Online Harms Bill won’t work. He says “we are now looking at a law that describes what all of us are allowed to say, and where we are allowed to say it”. The problem is that “we don’t actually know what we think about speech online”. Conventional norms which adapt to context don’t necessarily work in the complexity of different contexts of the internet and digital comms. Attempts by those in charge risk damaging the web’s many benefits.

And don’t forget…

The ICLR Pupillage Award is now open

If you are taking up pupillage in Autumn 2022, paid a total for the pupillage year of no more than £30,000 (including guaranteed earnings), you could receive our top-up award of a further £13,000. Apply by the end of May.

For application form and more details, see our dedicated Pupillage Award page.

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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