Weekly Notes: legal news from ICLR — 4 February 2019

This week’s roundup of legal news and comment has a crime-heavy flavour, including disclosure of spent convictions and youth reprimands, measures to tackle knife crime, the defence of legal aid, and plans for the future of the CPS. Plus the 30th anniversary of the Children Act 1989.

Human Rights

Disclosure requirements breached privacy rights

The Supreme Court affirmed the decision of the High Court and Court of Appeal that the indiscriminate requirement on disclosure of certain kinds of criminal record to future employers was incompatible with human rights legislation. In particular, the requirements to disclose multiple convictions irrespective of their age or seriousness, or to disclose youth reprimands, were considered disproportionate.

A number of appeals were decided together by the Supreme Court [2019] UKSC 3, including one from the decision of the Court of Appeal of Northern Ireland, In Re an application by Lorraine Gallagher for Judicial Review [2016] NICA 42, and three previously combined cases from the Court of Appeal of England and Wales, R (P, G & W) v Secretary of State for the Home Department [2016] EWHC 89 (Admin); [2016] 1 WLR 2009.

The baseline rule, under the Rehabilitation of Offenders Act 1974, is that criminal convictions do not have to be disclosed to future employers once they are ‘spent’. The Act (as amended) defines the types of conviction or caution that can be regarded as spent, and how soon. Secondary legislation provides that in specified situations an ex-offender’s right not to disclose a conviction or caution does not apply, including when applying to work in certain types of job or with children or vulnerable adults.

Alongside those rules applying to self-disclosure, there are those which apply to police disclosure via Disclosure and Barring Service (“DBS”) checks under Part V of the Police Act 1997. That scheme provided for the provision, according to the circumstances, of either a criminal record certificate (“CRC”) or an enhanced criminal record certificate (“ECRC”) covering all convictions and cautions, whether current or spent, and whatever the nature of the offence.

In 2013 and 2014 the rules under both schemes were changed to require disclosure of spent convictions and cautions only in certain specified cases, including serious or multiple offences. These cases involved applicants who had either committed multiple offences of a minor nature, such as shoplifting or failing to wear seat belts when driving, or youth reprimands for sexual offences. In each case, it was alleged that the strict disclosure requirements went too far and therefore breached their rights to privacy under article 8 of the Human Rights Convention scheduled to the Human Rights Act 1998.

The Supreme Court dismissed all the appeals except that in W’s case, holding (by a majority) that the disclosure regime satisfied the test of legality, but (unanimously) that it did not satisfy the test of proportionality. Lord Kerr dissented from the view that the regime satisfied the legality test, since in his opinion the cases showed that there is at least the potential for widespread disproportionate outcomes in disclosure and so it cannot be said that there are safeguards adequately to examine proportionality.

The appeal was allowed in W’s case because it was held to be appropriate to include assault occasioning actual bodily harm within the category of offences requiring disclosure.

For further reading, including links to decisions below and further commentary, see our case index card on ICLR.3

Legal aid

Defence lawyer threatened

We previously reported the media storm over legal aid provided for ‘runaway killer’ Jack Shepherd, typical of which was The Sun’s headline Parents’ fury as their daughter’s killer uses legal loophole to challenge his conviction with taxpayer money — while on the run (’Tis the season to trash legal aid…, Weekly Notes 14 January 2019). Shepherd, who was convicted in his absence, having absconded before trial, has since given himself up to the authorities in Tbilisi, Georgia. The imputation that his solicitor, Richard Egan, a partner at Tuckers, was pursuing an appeal in order to profit from the legal aid available for that purpose has led to a campaign of hate against him personally, including what has been described as a ‘credible’ death threat from far right extremists. (See BBC, Speedboat killer: Jack Shepherd’s lawyer receives Nazi death threat.)

The former Lord Chief Justice, Lord Thomas of Cwmgiedd, said the letter containing the threat was “not merely a crime in itself but a fundamental attack on our values as a society and hence the rule of law.”

According to Legal Futures:

Mr Egan told the BBC that he has received a stream of abusive and threatening communications, but did not take them particularly seriously until receiving the threat.

It said: “Remember Jo Cox? You have been followed — nice house! Now, accidents happen, people get stabbed in London, pets get poisoned, children run over. Be warned (EDF) we will petrol bomb your nice office.”

The letter, which featured a swastika and the SS symbol, and was signed ‘Heil Hitler 88’, has been passed to police.

In response, there has been a massive campaign of support by fellow lawyers for Egan, using the hashtag #WeAreRichardEgan.

The London Criminal Court Solicitors’ Association (LCCSA) issued a statement saying:

The public outcry to this case has been fuelled by repeated salacious and irresponsible reporting in the press and amongst politicians who have portrayed Mr Shepherd’s defence team as enabling his absence while engorging themselves on legal aid payments.

The prosaic truth is that dedicated professionals worked to the best of their ability in furtherance of their client’s best interests as they are professionally obliged to do so. They did so in a crumbling system and for limited payment.

This death threat is the sad unintended, but not unexpected, culmination of the misrepresentation of the role of Mr Shepherd’s defence team.

They called on the Lord Chancellor and the government to support the former Lord Chief Justice’s condemnation of “this vile attack on our legal system”. A day later the Lord Chancellor, David Gauke, did eventually issue a tweet from his personal account:

This was followed by a slightly fuller statement, included in a tweet from the Ministry of Justice:

The barrister acting for Shepherd in the appeal, Stephen Vullo QC, has since written to the Court of Appeal to explain that he had decided to act for no fee. He told the BBC:

“Richard received a death threat which I thought was credible and quite frankly appalling. He has been misrepresented in the press as somebody acting for the purposes of obtaining money. In fact he would receive no fee for the appeal. Only I would receive a fee. So I decided, against his wishes, to say I won’t claim my fee so therefore, the defence cost in legal aid will be zero.”

Meanwhile the police are investigating the death threats. If and when they are apprehended, they may well change their views about the benefits of having a legally aided defence lawyer, as solicitor Nicholas Diable pointed out:

Crime

New powers to tackle knife crime

As part of its response to the growing problem of knife crime, the government has announced legislation (by way of amendment of last year’s Offensive Weapons Bill) to add something called Knife Crime Prevention Orders. These ASBO-like civil restraint orders can restrict behaviour by placing curfews and geographical restrictions on individuals as well as limiting their social media use (in the hope of preventing rapid escalation of gang conflicts). A KCPO can be imposed on any person aged 12 who police believe is carrying a knife, is a habitual knife carrier, or has previously been convicted of a knife related offence. Breach of the civil order will constitute a criminal offence, and the ‘holder’ can be sent to prison for two years if convicted.

The introduction of KCPOs is just one of a number of measures being taken by the Home Office to allay growing public concern over the growth of knife crime in recent years, and to further the aims of its Serious Violence Strategy. In a statement welcoming the new powers, Deputy Assistant Commissioner Duncan Ball, National Police Chiefs’ Council lead for Knife Crime, pointed out that

“knife and violent crime is not something that can be solved by policing alone. We are working with schools, charities and community schemes to educate young people and explain why carrying a knife is never the right choice. This early intervention plays a vitally important role in stopping young people from turning to a life of crime.”

Others were more sceptical:

Penelope Gibbs, in the New Statesman, explained How knife Asbos will harm, not help, young people. She pointed out how, as a result of their use, “a teenager who is merely suspected of carrying a knife could be imprisoned for using social media without ever having been convicted of a knife-related crime.” She quotes John Sutherland, former senior commander in the Met Police, saying “the police don’t need more powers, they need more officers”.

Gibbs has also expressed her doubts over the policy on her Transform Justice blog, in Knife crime prevention orders — will they deliver?

“Knife crime ASBOs are likely to have bad unintended consequences. Teenagers and police already have a fraught relationship, marked by mistrust. Victims and witnesses of knife crime often refuse to tell the police what happened. These restrictive orders will increase mistrust of police since they, in effect, give the police power to punish without evidence.”

DPP sets out his agenda

In a post on the Civil Service blog, the new Director of Public Prosecutions, Max Hill QC, set out his priorities of the Crown Prosecution Service. Hill, who took over from Alison Saunders last November, said he was keen to promote learning and development for those making their careers within the CPS, and ensure that the positive work done by the department should be recognised and publicised. In this post he was essentially addressing his own workforce, in the civil service, rather than the public in general. But he recently addressed parliament, in the form of the Commons Justice Committee, in an evidence session in December, in which he also set out his priorities. In this he addressed the hot topic of disclosure (of evidence by the prosecution to the defence), saying

“The lesson that the Crown Prosecution Service and the police, may I say, have learned over the last year is that much more effort, training, supervision and indeed championing, which is now a term of art, needs to go into addressing disclosure early.”

He also said:

“I am not unduly alarmed if we see a rising number of cases in which disclosure is a feature. What we will need to look at is in how many cases it is not only a feature but there is also fault. I think that, over time, that will be eradicated to an absolute minimum, and that is our mission.”

Family law

Thirty years young: the Children Act 1989

To mark the 30th anniversary of the Children Act 1989, Professor Jo Delahunty QC devoted one of her series of lectures on the family justice system at Gresham College to celebrating its history and achievements, while also examining whether it is still fit for purpose. The lecture was given on 31 January 2019 but you can still watch a video stream of it, and download the accompanying PDF Transcript.

The Act embodied a change in philosophy by making the child’s welfare the courts ‘paramount’ concern, moving away from the concept of parental rights towards the right of the child. It embraced the idea of shared parental rights and responsibilities and that children are best cared for within their families but not at the expense of suffering avoidable significant harm. But in the three decades since it was enacted, society and the idea of the family unit have changed a great deal, some of the Act’s provisions have been misunderstood and misapplied, and not all of its aims have necessarily been achieved.

Sarah Phillimore on her Child Protection Resource blog has written her own appreciation of the Act and of Delahunty’s lecture, Happy Birthday Children Act 1989!

Legal information

Times legal correspondent to retire

Frances Gibb, the UK’s longest serving mainstream media legal affairs correspondent, has announced her retirement. In an article in The Times, for whom she has worked in the role since 1982, she reflects on the changing role of the reporter and how the justice system has changed over the years.

From the disdainful huffiness of Harman J to the senile prejudice of Lord Denning, from the lividness of Lord Irvine of Lairg to the grumpy sulk of Grayling LC, the reactions she has encountered haven’t always been as friendly or cooperative as an increasingly PR-savvy legal world might now expect. Nor have the senior legal figures she has reduced to print always appreciated the manner in which they have found themselves portrayed. But that’s journalism for you (which isn’t public relations). In the earlier days, things moved at a different pace:

“Without the internet, everything was slower and more laborious, from researching stories (which meant a trip to the cuttings library) to dictating copy from a phone box. It also meant that until your story appeared in print, the news wasn’t already all over social media.”

She mentions that “Court cases are still a staple diet, alongside the famous Times law reports.” That’s true, and recent cases are often covered in the news; but neither they, nor the long-running (but now woefully untimeous) law reports appear to recognise that they exist in an online world where judgments (and their neutral citations) are just a click away — if only a link or citation would be provided. (In the days before the internet, and when judgments were often given orally rather than simply handed down, the law reports, written at frantic speed, nevertheless appeared a day or so after judgment was given.)

If the Times doesn’t give as much urgent priority to its law reports (written by ICLR’s reporters) as it used to, it certainly values its more general legal coverage, having expanded the once weekly legal supplement into a daily bulletin (the Brief), and taken on extra staff to write it. It will be interesting to see who is hired now to replace the irreplaceable Frances Gibb.

Recent commentary

A good article on the (now abolished) presumption of doli incapax by Elena Papamichael, solicitor of Hodge Jones & Allen: Doli incapax: why do we hold our 10 year olds to have criminal responsibility? She argues that the abolition by section 34 of the Crime and Disorder Act 1998 of the presumption that children cannot form the intention to commit a crime, which was rebuttable for those aged between 10 and 14, was a reaction to the Jeremy Bulger murder case and is not supported by scientific research.

Civil procedure buffs have long been following the indefatigable coverage of Gordon Exall’s Civil Litigation Brief blog. In a recent post he considers the interesting question of When can a witness be excluded from the court hearing? The practice appears to be slightly different in family proceedings heard in private, but in regular civil cases there seems to be no rule to exclude a witness before they give their evidence. It is a matter for the judge’s discretion.

And finally…

Tweet of the week

is from Nicholas Diable, with a tale of unshackled passion.

That’s it for this week! Thanks for reading. Watch this space for updates.

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.

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.