Weekly Notes: legal news from ICLR — 4 March 2019
This week’s roundup of legal news and commentary includes a murder reconsidered, a problematic privatisation, a ducked judicial challenge, and rental discrimination.
‘Right to rent’ checks scheme unlawful
The government’s Right to Rent scheme, which requires landlords to check the immigration status of tenants, with fines of up to £3,000 and a potential prison term if they fail to do so, was found to constitute unlawful racial discrimination in a claim for judicial review brought by the Joint Council for the Welfare of Immigrants (JCWI). The scheme was introduced by sections 20–37 of the Immigration Act 2014, and is a cornerstone of the government’s ‘hostile environment’ policy, which aims to reduce the number of illegal immigrants in the UK. But the JCWI claimed the scheme was “race discrimination against those who are perfectly entitled to rent”.
In R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department  EWHC 452 (Admin) Martin Spencer J found the scheme to be incompatible with articles 8 (right to respect for private and family life, home and correspondence) and 14 (enjoyment of such rights without discrimination) of the European Convention on Human Rights (“ECHR”) as scheduled to the Human Rights Act 1998, and accordingly made a declaration of incompatibility under section 4 of that Act.
That does not mean the scheme is no longer in force: it means Parliament needs to change the law, but unless and until it does so, the law remains in force, as the Associate Professor of Property Law at the University of Leicester and author @ModernLandLaw pointed out:
The judge further declared that a decision by the Home Office to extend the scheme to Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of section 149 of the Equality Act 2010. The Home Office said it was “disappointed” by the ruling. But the Residential Landlords Association welcomed the ruling, saying the policy had turned landlords into “untrained and unwilling border police”.
There are comments on the case from Free Movement, High Court finds Right to Rent checks discriminatory in landmark judgment (looking at the matter from the immigration point of view) and from Nearly Legal, Rights and Right to rent (looking at it from the landlords’ point of view).
See also: BBC, ‘Right to rent’ checks breach human rights — High Court, which helpfully includes a link to the judgment, for which Julien Foster gives due credit:
Murder conviction quashed in coercive control case
Sally Challen, who in 2011 was sentenced to life imprisonment with a minimum term of 18 years for the murder of her husband, has won an appeal against conviction but (subject to any decision by the Crown not to proceed with the case) must now face a retrial. The Court of Appeal, Criminal Division gave an extempore judgment (per Hallett LJ, sitting with Cheema-Grubb and Sweeney JJ) on 28 February 2019, which was live tweeted throughout, but then imposed reporting restrictions, limiting what can now be said about their decision to a statement that (i) they had heard evidence from a pair of consultant psychiatric specialists who said Sally was suffering two mental disorders at the time of the killing, and (ii) this evidence had not been available at the trial.
Allowing an appeal on the basis of new evidence is not unusual, but the case is said to have made legal history by virtue of its raising the issue of domestic abuse by way of coercive and controlling behaviour, and its effect in diminishing the victim’s responsibility for a desperate act of homicidal violence against the perpetrator. (She bludgeoned her husband’s head with a hammer.) The case was the subject of a campaign by her sons and others, under the hashtag #FreeSallyChallen.
As the Guardian explained in its report, Sally Challen, had been married to Richard Challen for 31 years, but was separated at the time of the offence. She
She admitted killing the former car dealer, but denied murder claiming diminished responsibility. Her case was that she had been subjected to abuse and intimidation by her husband, whom she met when she was 15.
The prosecution case was that it was the action of a jealous woman who suspected infidelity, and she was found guilty of murder and jailed for life with a minimum term of 22 years, later reduced on appeal by four years.
At a press conference, her solicitor Harriet Wistrich said:
“Whatever may be the ultimate outcome, we have managed to raise awareness and a much deeper understanding of the concept of coercive control, which is such a recent one.”
Not everyone reported the case as calmly and humanely as the Guardian, with numerous headlines referring to ‘hammer killer wife’ and the like. At least the BBC changed its tune after numerous complaints:
See also, in the Guardian, for background: ‘I miss him so much’: why did a devoted wife kill the man she loved?
NAO report condemns privatisation
In its latest report, Transforming Rehabilitation: Progress review (HC 1986) (1 March 2019), the National Audit Office is highly critical of the way that the Ministry of Justice under then Lord Chancellor Chris Grayling set about its Transforming Rehabilitation project in 2013.
The so-called reforms involved creating a two-tier probation system in England, under which serious offenders would continue to be dealt with by the national probation service, but less serious offenders would be managed by a number of private Community Rehabilitation Companies (CRCs) who would bid for the contracts and deliver probation services on a paid-by-results basis. They soon found that the results were poor and the pay was inadequate. Last July the Lord Chancellor David Gauke effectively admitted that the partial privatisation of probation services had not worked well and that CRC contracts would be terminated two years early, in 2020, with a view to a complete rejig of the system.
According to the NAO report:
The Ministry set itself up to fail in how it approached the Transforming Rehabilitation reforms. Its rushed implementation introduced significant risks that its chosen commercial approach left it badly placed to manage. The consequences of these decisions are far reaching. CRCs have underinvested in probation services, which have suffered as a result. There is little evidence of hoped-for innovation and many of the early operational issues, such as friction between the NPS and CRCs, persist. Although the number of reoffenders has reduced, the average number of reoffences they commit has increased significantly. Transforming Rehabilitation has achieved poor value for money for the taxpayer.
The report finds that the Ministry designed and implemented its reforms too quickly and without sufficient testing. Its chosen commercial approach proved to be inappropriate given the nature of probation services. The agreement last June to to terminate the contracts of Community Rehabilitation Companies (CRCs) 14 months early has cost to the taxpayer a further £171m at least. When added to the costs of changing the contracts in 2017–18 the total estimated additional cost becomes at least £467m. Although the Ministry has identified and acted on many of the shortcomings in the reforms, its proposals for probation services do not address all the risks, and they introduce some new ones.
Judiciary response to McKenzie Friends consultation
There was some disappointment over the long-awaited response of the judiciary to its own McKenzie Friends Consultation, in which they essentially kicked the can down the road to Westminster.
To recap, in February 2016, the Lord Chief Justice and the Judicial Executive Board (JEB) issued a consultation entitled “Reforming the courts’ approach to McKenzie Friends”. It followed an internal report by a judicial working group and sought responses to a number of proposals in relation to McKenzie Friends, including changing their name to ‘court supporter’, replacing existing practice guidance with rules of court, introducing a Code of Conduct for them, and imposing a bar on recovery of fees. The consultation closed in June 2016 year (extended from May 2016). In view of the large number of responses, the JEB decided to establish a further judicial working group to review the original proposals in the consultation paper in the light of those responses. That was in September 2017. It has taken until now for them to publish their response.
The Law Society Gazette reports that Judges duck sweeping McKenzie reforms, pointing out that “the judiciary has ducked the issue of banning fee recovery by paid McKenzie friends saying that is a matter for the government.”
In fact, they have ducked more than that, as Paul M points out on the Transparency Project blog. They have basically passed the whole problem over to the government, saying the problems with McKenzie Friends (about which they are “deeply concerned”) have in turn been caused by the massive growth in the number of litigants in person (LIPs) as a result of cuts to legal aid, and therefore
“It is for the government to consider appropriate steps to be taken to enable LiPs to secure effective access to legal assistance, legal advice and, where necessary, representation.”
Accordingly, they are passing the whole file over to the Lord Chancellor at the Ministry of Justice. They do, however, recognise that it is time to update the Practice Guidance (McKenzie Friends: Civil and Family Courts)  1 WLR 1881 in line with more recent law. Though no more recent cases are cited in their response, they suggest that “To ensure that it properly reflects the current case law, it should now be updated and re-issued.”
See also: David Burrows, DB Family Law blog, Lay representation in civil proceedings
Transparency Project patron
Clifford Bellamy, who retired as the Designated Family Judge for Derby last month, has agreed to act as a patron of The Transparency Project, a charity which explains and discusses family law and family courts in England & Wales, and signposts to useful resources to help people understand the system and the law better. Read their announcement here.
Pupillage Award open
This year’s annual ICLR Pupillage Award is now open. If you are taking up pupillage in Autumn 2019, paid a total for the pupillage year of no more than £25,000 (including guaranteed earnings), you could receive our top-up award of a further £12,000.
For more information about the rules, the application process, and to download the application form or complete it online, go to the ICLR Pupillage Award 2019 page on our website.
Last year’s winner was Daniel Wand, at 4 King’s Bench Walk.
… was the name of one of our mystery donors for ICLR’s participation in the Great Legal Bake 2019, organised by the London Legal Support Trust. It is one of two ways in which we help raise funds to provide much-needed free legal advice in the desert left by savage legal aid cuts. (The other is the LEGAL WALK which will take place on Mondy 17 June 2019.)
With this year’s bake ICLR has so far raised a total of £121.50 (including Gift Aid for non-cash donations). It’s not too late to add to that, via ICLR donations page.
Overall, with all the law firms and chambers and other organisations taking part, the LLST Great Legal Bake has raised £10,000 to date.
Dates and Deadlines
Discussion: Diversity and Social Mobility
Bingham Room, Gray’s Inn, Monday 11 March, 6–8pm
Co-hosted by the former President of the Supreme Court Lord Neuberger and Pupil Barrister at 2 Hare Court Kawsar Zaman, the panel will share their own inspirational journeys to the law and/or the measures they have taken to champion issues of diversity and social mobility in the legal profession. With Mrs Justice Cheema-Grubb, Matthew Ryder QC, Sophie J. Lamb QC, Dominic Griffiths. Registration: 17:45.
This event is open both to members and non-members, but is now fully booked. Please contact Tom Charles(link sends e-mail) to be placed on the waiting list.
Prevention of recidivism: trends in Japanese criminal policy
Daiwa Foundation Japan House, Wednesday 13 March 2019, 6 to 7 pm
Seminar arranged in cooperation with the British Japanese Law Association, in which Andrew Watson of Sheffield Hallam University’s Department of Law and Criminology, and Taichi Yoshikai, law professor at Kokushikan University Faculty of Law in Tokyo, discuss the basics of the Japanese probation system and the challenges it faces, with comparison to probation in England and Wales (as to which, see above), in the light of a recent Japanese Act to Promote Prevention of Recidivism (2016).
This event is free but booking is essential.
Survive & Thrive: Co-operation and Compromise — Strategies for Success
Middle Temple, Thursday 21 March 2019, 5.30 pm
Speakers Adam Kay, comedy writer, author, comedian and former doctor, and Tom Tugendhat MP, son of the retired High Court Judge, Sir Michael Tugendhat, discuss how to compromise whilst maintaining authority, how to manage your client’s expectations vs. the reality, and share some effective communication techniques for successful compromise. Moderator, Dame Philippa Whipple, High Court judge.
Members of the Inn can buy tickets online by Clicking Here. If you are not a member of the Inn you can purchase tickets from the Treasury Office in person or by telephoning 020 7427 4800.
Tweet of the week
is by the Cat from Greece
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.