Weekly Notes: legal news from ICLR, 4 May 2020

This week’s roundup of legal news and commentary includes the data protection implications of contact tracing apps, more appeals on the Horizon for the Post Office IT fraud scandal, another call for feedback on remote hearings, world press freedom warnings, and some recent interesting cases.

Data Protection

There has been concern over the privacy implications of contact-tracing apps, which are designed to alert users to the risk of having caught the Cornavirus, based on the fact that someone they were recently near to has been diagnosed with it. A key consideration is whether the data used is “centralised” or “decentralised” — stored and administered centrally or only retained locally on relevant users’ devices. There is a helpful explanation of the difference on the UK Human Rights Blog (What are the data privacy considerations of Contact Tracing Apps? by Rafe Jennings):

“Two general architectures have been proposed for a contact tracing app: centralised and decentralised. On a decentralised architecture, after a positive diagnosis, one’s personal identifier is uploaded to a server which then broadcasts the identifier to all other phones running the app. One’s proximity contacts are recorded on one’s phone; if there is a match between a proximity contact and an identifier received by a phone, the user is alerted to the possibility that they may have contracted coronavirus. The central server therefore does not contain information regarding who may have contracted coronavirus from the matches. On a centralised model, one’s proximity contacts are uploaded to a central server, where the matches are made and then sent to the relevant phones.”

The app being developed in the UK by NHSX (the body responsible for setting NHS data usage policy and best practice) is apparently going to use the centralised model, which is different from the decentralised one proposed by Apple and Google, and used in other countries, despite the concerns raised about privacy and performance. The advantage of the centralised approach is that it enables the government to build up a complete picture of the spread of the virus nationwide, but the downside is that it opens a back door into a potentially very intrusive surveillance regime, which could easily be abused with oppressive consequences for personal freedom of movement and association. The use of the app will supposedly be voluntary, and in any case will depend on people having and switching on the requisite bluetooth technology (for the contact detection to work) and having and using wifi or mobile data while out and about, although presumably the contact history could be uploaded once they return home and are connected. Lack of takeup will affect its effectiveness. Coronavirus has already been blamed on 5G and mobile data transmitters, which have duly been subjected to arson attacks by the irrational; perhaps they were simply confusing the disease with the mechanism for its eradication?

Further reading:

Crime

Following the judgments of Mr Justice Fraser in the civil claim by over 500 sub-postmasters against the Post Office in respect of its contractual liability for the failings of the Horizon IT accounting system the claimants were required to use, as a result of which a £58m damages settlement was reached last year, a large number of the sub-postmasters who had been convicted of fraud or false accounting in prosecutions brought by the Post Office have attempted to have those convictions quashed on appeal.

In March, the Criminal Cases Review Commission (CCRC) referred the convictions of 39 subpostmasters to the Court of Appeal, on the basis that each prosecution amounted to an abuse of process because of the issues with the Horizon system. It is also considering a further 22, according to Legal Futures, who now report that Hudgell Solicitors, who are based in Hull, have also begun work on trying to overturn as many as 500 potentially unsafe convictions as a result of the Post Office Horizon IT scandal.

Managing director Neil Hudgell has already been working with local MP Karl Turner to explore potential civil claims for those who were not part of the group, but revealed yesterday that it has now instructed leading appellant barristers Tim Moloney QC of Doughty Street Chambers to help all who were wrongly prosecuted overturn their convictions.

The move is said to have the backing of the Justice for Subpostmasters Alliance (JFSA), which helped bring the group action, and whose website contains a lot of background information.

For a handy summary of the issues in the civil cases, Fraser J’s initial case management judgment in Bates v Post Office Ltd [2017] EWHC 2844 (QB); [2017] 4 WLR 221 at [4] puts it in a nutshell:

“It is alleged by the claimants that the Horizon system changed the way that the claimants could both account for, and interrogate and investigate, the numerous financial transactions that were made in the relevant branches every working day. A central part of the claimants’ case is that the Horizon system had a large number of software coding errors, bugs and defects. The agreed case summary for the first Case Management Conference states that alleged shortfalls in the claimants’ financial accounting with the defendant were caused both by the way the Horizon system operated, together with other deficiencies. At the time, these shortfalls that came to the notice of the defendant were pursued as exactly that — shortfalls — with the relevant claimants. The defendant’s stance was that the claimants were responsible for these shortfalls, and that the shortfalls represented actual amounts of money missing from the claimants’ accounting. Some claimants paid these amounts to the defendant out of their own resources, even though they did not believe or accept that there was anything deficient in their accounting. Some of the shortfalls were for modest sums. Some claimants were lucky enough to find accounting irregularities in their favour. Others were convicted in the criminal courts of false accounting, fraud, theft or other offences. These claimants claim malicious prosecution against the defendant, and also claim that there was a “cover up” at the defendant over the shortcomings in Horizon. Some claimants were made bankrupt. There are claims for damages for financial loss, personal injury, deceit, duress, unconscionable dealing, harassment and unjust enrichment brought against the defendant.”

There are five further published judgments of Fraser J, culminating in a 440-page judgment in Bates v Post Office Ltd (No 6: Horizon Issues) [2019] EWHC 3408 (QB), in December 2019.

The case has been covered extensively in Private Eye (hear, for example, their February podcast episode Going Postal) and in the mainstream media. The tale is a shocking one, and reflects very badly on the Post Office, whose role as prosecutors of their own sub-postmasters over accounting errors caused by their own software suggests they are not really a fit and proper institution to wield such a power. The fact that so many of the sub-postmasters have not only been robbed of the money they paid to offset errors in the system but have been deprived of their liberty on the basis of false accusations is doubly disgraceful.

“This has quite simply been an absolutely appalling scandal which has led to a host of wrongful convictions. At this stage we are unable to accurately predict the number of unsafe convictions, but they are well into three figures”

said Neil Hudgell, in the announcement on his firm’s website. And the MP Karl Turner, himself a criminal barrister and former Shadow Attorney General, said:

“The JFSA, myself and Hudgell Solicitors are determined to ensure that as many people affected by this scandal as possible get the justice they deserve for what happened to them.

“For too long this has been something the Post Office has been able to brush aside, and the settlement last December did not go far enough. It only scratched the surface in terms of the scale of investigation carried out, and also in terms of justice being served. We won’t let this one go.”

Courts

Last month the President of the Family Division, Sir Andrew McFarlane announced a Two-week rapid consultation on remote hearings in the Family Court under which:

“The Nuffield Family Justice Observatory (NFJO) will seek to gather evidence from families with children and all professionals working in the family justice system, including judges, barristers, solicitors, Cafcass workers, court staff and social workers.”

That consultation ran until 28 April and is now closed. We expect the results to be published soon. for more details, see the NFJO website.

This month, the Civil Justice Council (CJC) has commissioned an independent review led by Dr Natalie Byrom, Director of Research at The Legal Education Foundation (LEF) with the support of a wider virtual working group to gather feedback on the impact of COVID measures on the civil justice system. According to the announcement from the Judicial Office,

“This review will run for two weeks from Friday 1 May to Friday 15 May in order to report by 22 May 2020. The aim of the review is to provide an overview of the operation of current measures and offer practical recommendations to inform the ongoing response to COVID. It will concentrate on the experience and reaction of court users. It will also provide useful ground work for any future wider review of the use of remote hearings, identifying areas where further evidence may be needed.”

The #CJCcovid review is particularly interested in gathering feedback from court users in response to the following questions:

  • What is working well about the current arrangements?
  • What is not working well about current arrangements?
  • Which types of cases are most suited to which type of hearings and why?
  • How does the experience of remote hearings vary depending on the platform that is used?
  • What technology is needed to make remote hearings successful?
  • What difference does party location make to the experience of the hearing?
  • How do remote hearings impact on the ability of representatives to communicate with their clients?
  • How do professional court users and litigants feel about remote hearings?
  • How do litigants in person experience hearings that are conducted remotely?
  • How do remote hearings impact on perceptions of the justice system by those who are users of it?
  • How is practice varying across different geographical regions?
  • What has been the impact of current arrangements on open justice?
  • What other observations would you make about the impact of COVID-19 on the operation of the civil justice system?

Respondents can submit their feedback by email to consultation@theLEF.org or via an online survey, and there will be a virtual consultation meeting on 11 May (details to follow).

Human Rights

To mark the occasion of World Press Freedom Day on 5 May 2020, the International Bar Association Human Rights Institute published a statement via its Freedom of Expression Bulletin on 1 May by the High Level Panel of Legal Experts on Media Freedom on the challenges posed to media freedom in the context of the Covid-19 pandemic. The statement includes the following observations:

“While we recognise the challenges that states face in responding to the pandemic, we urge governments to ensure that if any encroachments on press freedom or any other human right are needed, they are limited to what is strictly necessary in the present crisis and are revoked when it abates.”

“The Panel recognises that false information about the Covid-19 virus is dangerous and can even be deadly, especially when it is spread by governments themselves. But the use of laws purportedly passed to deal with misinformation to silence critical reporting is also dangerous.”

“In what has been called a ‘Covid Crackdown’, over 40 journalists have been arrested or charged around the world following critical reporting on governments’ responses to the pandemic, or even for simply questioning the accuracy of case numbers or death tolls.”

“Whilst international human rights law can allow for restrictions on individual rights in the context of serious public health threats and emergencies, they are only justified when they have a legal basis, are strictly necessary and proportionate to the danger they address, and subject to independent review.”

The bulletin goes on to catalogue issues, threats and responses from different parts of the world. In relation to the UK, IBAHRI raises the alarm in relation to the increased access to comms data collected under the Investigatory Powers Act 2016:

“The IBAHRI is concerned with what can be interpreted as an attempt by the United Kingdom to use the current Covid-19 crisis to its advantage by extending access to the bulk of personal data collected under the Investigatory Powers Act 2016 to five more state agencies with little or no connection to missions of counterterrorism or protection of national security.”

Case law update

Readers may recall the Supreme Court case of Ivey v Genting Casinos (UK) Ltd (trading as Crockfords Club) [2017] UKSC 67; [2018] AC 391 which we commented on here in Weekly Notes, 30 October 2017. It concerned cheating at cards in breach of the Gambling Act 2005 but contained observations (obiter dicta) on the meaning of “dishonesty” in a more general sense. Last week a five-strong Court of Appeal, Criminal Division held in R v Barton (David) [2020] EWCA Crim 575; [2020] WLR(D) 264 that those obiter dicta set out a test that the courts should follow when considering dishonesty, in preference over the previously binding decision of the Court of Appeal in R v Ghosh [1982] QB 1053.

There has been some speculation about whether this involves a change in the rules of stare decisis (binding precedent) attributable to the decision of the Supreme Court or to that of the Court of Appeal — or indeed to neither. Normally, obiter dicta of a superior court would not “trump” the binding previous decision of the Court of Appeal. However, the Court of Appeal is not bound by its own decisions if to do so would conflict with a decision of a superior court: see Young v Bristol Aeroplane Co Ltd [1944] KB 718, CA. But this was not a decision of the Supreme Court, it was obiter dicta. However, the Court of Appeal is not as strictly bound by its own previous decisions in criminal matters as it might be in civil: see R v Gould (John) [1968] 2 QB 65. So it seems the Court of Appeal has decided to save the Supreme Court the bother of hearing and determining what would presumably be a futile appeal to confirm in ratio decidendi its earlier obiter dicta.

In paragraph 80 of the judgment of the court given by Lord Burnett CJ they set out the problem:

“The central question concerns the status of the decision of the Supreme Court in Ivey. In this case the judge directed the jury on the issue of dishonesty by reference to Ivey rather than Ghosh. In doing so he did what the Supreme Court had indicated should happen at [74], namely that directions based upon Ghosh “should no longer be given”. That indication is reflected in the Crown Court Compendium (a practical aid to judges sitting in that court) and the two leading practitioners’ works, Archbold and Blackstone. Mr Bogan Q.C., for David Barton, and Mr Payne, for Rosemary Booth, submit that the judge should have followed Ghosh because the observations in the Supreme Court were not essential to its decision (i.e. were obiter dicta) whilst Ghosh remained binding authority. In any event, they submit that the reasoning in Ghosh is correct and to be preferred to that of the Supreme Court.”

The matter is discussed at some length and by reference to a number of cases (including R v James [2005] EWCA Crim 14; [2006] QB 588, where the Court of Appeal decided to follow more recent Privy Council authority in preference for an earlier House of Lords case), before reaching this conclusion, at para 104:

“We conclude that where the Supreme Court itself directs that an otherwise binding decision of the Court of Appeal should no longer be followed and proposes an alternative test that it says must be adopted, the Court of Appeal is bound to follow what amounts to a direction from the Supreme Court even though it is strictly obiter. To that limited extent the ordinary rules of precedent (or stare decisis) have been modified. We emphasise that this limited modification is confined to cases in which all the judges in the appeal in question in the Supreme Court agree that to be the effect of the decision.”

If that represents a change in the doctrine of stare decisis, then it seems to be a change made in this case by the Court of Appeal (sitting five-strong) and not by the Supreme Court in Ivey.

Last week we mentioned the popularly attended remote hearing in Markle v Associated Newspapers. As Inforrm’s weekly Law and Media Roundup reports, judgment has now been given by Mr Justice Warby, under the name Duchess of Sussex v Associated Newspapers Ltd [2020] EWHC 1058 (Ch),

“striking out three parts of the particulars of claim alleging that the publisher had acted ‘dishonestly’ by leaving out certain passages of the letter, that the publisher deliberately ‘stirred up’ issues between Meghan and her father, and that it had an ‘agenda’ of publishing intrusive or offensive stories about her.

Warby J said that those allegations should not form part of the Duchess’s case at this stage because they were ‘irrelevant’ to her claim for misuse of private information, copyright infringement and breach of the Data Protection Act, but he said those parts of her case may be revived at a later stage, if they are put on a proper legal basis.”

Following her earlier guest post on the unfortunate experience for some lay participants of a remote hearing of the Court of Protection (see Remote justice: a family perspective, via Transparency Project), Celia Kitzinger has now written about a rather more successful CoP hearing in When Remote Justice Works (also via the Transparency Project). This time the hearing, conducted by Mr Justice Hayden, “worked almost seamlessly”:

“Those of us present as observers (myself, the judge’s clerk, and a Press Association journalist) then turned off our cameras, leaving two people — counsel for the Local Authority and D’s social worker — visible on screen. Unlike my previous experience, the backdrops were all blandly appropriate to the occasion and there were no intrusive pets. The audio quality was good throughout — but with a slight time-lag leading to inevitable interruptions, although I don’t think these significantly affected the conduct of the proceedings.”

There were still the usual difficulties about finding out about the case in advance from the very parsimonious way these cases are listed but the hearing itself, which involved deprivation of liberty issues for an 18-year-old with autism and a range of disabilities who had been identified as highly susceptible to financial and sexual exploitation, not only went well but appeared to be well suited to the case.

“I hope judges will take the opportunity to do more remote hearings of cases, like this one, which seem suited for it — and that they will make appropriate arrangements for journalists, legal bloggers and members of the public to attend in order to preserve the culture of transparency.”

The Court of Appeal in two cases, imaginatively titled A and B, have offered further guidance (there’s a lot already out there) on the conduct of remote hearings during the coronavirus pandemic lockdown and the suitability of cases for such hearings: A (Children) (Remote Hearing: Care And Placement Orders) [2020] EWCA Civ 583 and In re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584.

Lucy Reed has commented on these cases via the Transparency Project blog in Alphabet Soup, which continues the soup theme with a listening recommendation for The Wonderful Soup Stone by Dr Hook and the Medicine Show.

The Judiciary website is supposed to publish all contempt of court rulings, and it has to be said that these have been appearing with greater regularity than before. They have also appeared as HTML pages rather than as attached PDFs, which is more accessible, but mixed up with all the other judgments instead of under their own feed, which is less helpful. However, the practice direction which requires that they be published also mandates that the contemnor be named in the published ruling, yet the case of Nathan Briggs lacks a formal case title. The full name does appear in the text of the judgment though.

Another interesting and unexplained feature (Tweeted by Gareth Corfield) is the line in the representation bit saying “The Defendant attended by phone having been refused entry by security at court”. One might assume that he was too disruptive to let into the building, or that he failed clearly enough to explain his need to do so (to attend court in response to a summons, presumably) or that the security staff were applying some social distancing rule with exceptional rigidity; but whatever the reason, one would have thought the judge might have recorded something more about it, given the open justice and public scrutiny agenda behind the fact that these judgments are published in the first place.

Eleanor Sharpston QC, an Advocate General at the European Court of Justice, has lodged two claims in the General Court, complaining about a decision by the remaining states of the European Union to terminate her appointment early because of Brexit. According to the Law Society Gazette,

“the EU’s 27 member states issued a declaration on 29 January that Sharpston’s mandate would terminate two days later. The court’s president, Koen Lenaerts, wrote a letter to the Council of the EU declaring a vacancy from 1 February.

Sharpston … argues that the assertions made by the EU 27 and in the president’s letter are unlawful because they bypass safeguards contained in the court’s statute, which is primary EU law. That says the mandate of a serving member can be terminated only by the court itself for specific, mainly disciplinary, reasons.”

Sharpston gave a brilliant talk when a group of us visited the court not long ago, as we reported on the blog: A visit to the European Court of Justice in Luxembourg.

Legal profession

The Ministry of Justice has pledged £5.4 million to support legal advice sector during the COVID-19 pandemic. The funding allocated to the Community Justice Fund will be administered by the Access to Justice Foundation and the Law Centres Network will oversee funding earmarked for law centres. It will help organisations to continue to provide vital legal advice throughout the pandemic, increase capacity, and deliver services remotely. According to the announcement:

This is in addition to a recently signed grant agreement to provide more than £3.1m in funding to organisations that support unrepresented defendants in the courts, known as Litigants in Person.

Specialist legal advice providers focuses mainly on areas of social welfare law, for example housing, debt, employment, discrimination and special educational needs.

The Northern Circuit has established a Fund from which it will be able to make grants to members of the Circuit to alleviate cases of serious unexpected financial hardship caused by the loss of work due to the Cornonavirus pandemic.

For more details, application forms etc, see their website.

A judge in Florida recently raged against some local attorneys for failing to wear appropriate attire on camera for remote hearings. So far as we are aware, there have been no similar complaints in this jurisdiction, but it does appear that most remote hearings are conducted in a less formal way than proceedings in court. The question might arise as to whether the fairly strict rules on court attire might now be relaxed a little. This is discussed by Neil Corre, a barrister at Redbourne Chambers, in a post on the Crimeline platform, I Can’t See You, prompted by the recent court guidelines.

“On 23rd March 2020 the Court of Appeal Criminal Division issued guidelines to advocates appearing by way of remote connection. They need not robe but should wear business attire. Judges sitting in court will continue to wear conventional court dress, but when the entire hearing will be remote everyone including the judiciary will be in business attire.”

After centuries, it may seem ironic that wigs and gowns have survived into the age of space travel and artificial intelligence, but been rendered obsolete by something as mean and microscopic as a virus.

Fake Law

Fake Law: The Truth About Justice in an Age of Lies, the Secret Barrister’s new book, won’t be published until later in the year but you can win a copy signed by the very paw of the anonymous lagomorphic caped crusader by bidding in an auction to raise funds for Billable Hour. The proceeds will go to Save the Children, which is anticipating “a CV19 catastrophe in Africa and parts of Asia” for which they need funds to prepare and deal with.

Read more about the auction on Civil Litigation Brief. Bidding closes at 9.45 pm on Friday the 18th May 2020. The highest bidder will be sent the book upon publication and after they have given details of the wording they want SB to write. We very much hope the auctioneer will use a gavel, because — despite everything you will have seen in the press in stock images used to illustrate inaccurate legal coverage — British judges do not.

And finally…

is from the author of the abovementioned Civil Litigation Brief, Gordon Exall, reflecting his other Twitter obsession, music.

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

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.