Weekly Notes: legal news from ICLR, 6 December 2021
This week’s roundup of legal news and commentary includes privacy and the press, crime and punishment, human rights, public order and recent case law.
Private letters in the Mail
Private correspondence, sent by the Duchess of Sussex to her father, should not have been published in the Mail on Sunday. The Court of Appeal in HRH Duchess of Sussex v Associated Newspapers Ltd  EWCA Civ 1810;  WLR(D) 610, upheld the decision of Warby J  EWHC 273 (Ch);  4 WLR 35 that the Duchess, Meghan Markle, had a reasonable expectation that the contents of the letter would remain private, and publication of large extracts from it had been neither necessary nor proportionate. According to Inforrm’s blog (Law and Media Round Up — 6 December 2021)
“The matter now returns to the High Court for compensation to be determined. The Duchess is seeking “accounts for profits,” which would mean compensating on the basis of how much Associated Newspapers benefited from its law-breaking. The Mail on Sunday will now have to publish prominently on its front page three statements acknowledging that it infringed the Duchess’ copyright, as ordered by the court at first instance. Associated Newspapers is said to be considering an application for permission to appeal to the Supreme Court.”
The decision prompted complaints that the protection of privacy was being given too much weight in the balance as against of freedom of the press, though both are protected under the Human Rights Act 1998 (which in turn was blamed for this imbalance). The controversy is explained, and defused, by Joshua Rozenberg in a post on A Lawyer Writes, Privacy and the press. He has argued that although it got a boost from the HRA, the courts would have developed the law to protect privacy in any event, and that “No steps have been taken by successive governments to reverse this development”.
He may have spoken too soon. The newspapers are reporting that the present government might now attempt to do so. It’s hard to tell how serious the intention is, given the government’s need to distract people from its own problems (see below) and to pacify the press. The Times on 6 December reported that
“An overhaul of human rights laws will aim to ‘correct’ the balance between free speech and privacy after the Duchess of Sussex’s legal victory over The Mail on Sunday, Dominic Raab has said. The justice secretary told Times Radio that there had been a ‘drift towards continental-style privacy laws’ in the UK because of EU policy such as the right to be forgotten and European Court of Justice case law.”
If newspapers can hack out your private correspondence, it seems quite hard to understand all the fuss about them hacking your phone. And if the government is so concerned about protecting people’s privacy when it comes to social media, why are they so relaxed about trashing it in the news media?
Yet another horrible case generating much public outrage has also given rise to calls for harsher sentencing. Last week Emma Tustin, having been convicted of the murder, and her partner Thomas Hughes, having been convicted of the manslaughter, of Hughes’s 6-year-old son Arthur Labinjo-Hughes were sentenced, in Tustin’s case, to life imprisonment with a minimum period of 29 years before being considered for parole, and in Hughes’s case to 21 years’ imprisonment. Both also received concurrent sentences of 9 years’s imprisonment for additional convictions for child cruelty. The sentencing remarks of Mr Justice Wall at Coventry Crown Court on 3 December 2021 make for dismal and shocking reading. See also Joshua Rozenberg, A Lawyer Writes: How sentencing works.
Community Care reports that a case review is considering where and how the police, educational and social services may have failed to heed warning signs or take steps to protect Arthur from his grim fate. Now it has been reported (eg in The Guardian) that the Attorney General (AG) plans to apply for the sentences to be reviewed on the ground that they are too lenient. In a previous case, publicised last month, the AG secured an increase in the sentence of a father who killed his 39-day old baby.
The government has also recently announced Tougher penalties for child cruelty through ‘Tony’s Law’. Not only do they want to increase the sentences given for various offences of child cruelty, but in doing so they want to memorialise a particular victim by calling the enactment Tony’s Law. This follows previous ‘new’ laws given particular names, such as Harper’s Law, which we reported on last week. Joshua Rozenberg (Tony’s law?) wonders why we don’t just give new laws descriptive names based on what they do.
Curbs on public protest
The government has announced that one of the things it wants to do with the Police Crime Sentencing and Courts Bill is to give the police new powers to prevent the significant disruption caused by protesters determined to lock or glue themselves onto structures. It is one of a number of measures in the Bill designed to curb the right to protest:
“The government also intends to make the act of locking-on to cause serious disruption a criminal offence, which could see someone jailed for up to six months and faced with an unlimited fine.
Another government amendment will mean that blocking a motorway would meet the same punishment. The current law for this offence sets the penalty at a maximum fine of just £1,000 and is not an adequate deterrent for organisations determined to cause widespread disruption and break the law.
And Serious Disruption Prevention Orders will be brought in to tackle protesters who are determined to repeatedly cause disruption to the public. These will give the courts the power to impose orders on those with protest related convictions or a history of causing serious disruptions at protests in order to prevent them from continuing to commit such acts.”
Following reports appearing in the Mirror, about a party attended by “several dozen” people at No 10 Downing Street last year on 18 December 2020 while strict Covid restrictions were in place forbidding such an event, two Labour MPs have written to the Metropolitan Police Commissioner Dame Cressida Dick asking the police to investigate what must have been a breach of the Coronavirus Regulations then in force. A source who attended the event has told the BBC party games were played, food and drink were served, and the party went on past midnight. At the time, London was subject to Tier 3 lockdown restrictions, which banned people from mixing indoors with anyone not in their household or support bubble. The video in this tweet from Ros Atkins of the BBC encapsulates the whole controversy rather well:
One of the MPs, Neil Coyle, who represents Bermondsey and Southwark, said:
“Like most constituents, I followed the rules and did not see my own dad last Christmas and, sadly, it was to be his last. The sense of outrage from constituents is palpable that they followed the rules whilst those responsible for devising and enforcing them were breaching them at the top of government.”
Although the Deputy Prime Minister (and Justice Secretary) Dominic Raab has admitted that a formal party at the time would have broken the rules, he said the reports were simply “unsubstantiated claims all on the basis of anonymous sources”. The Metropolitan Police acknowledged that they had been asked to investigate the alleged breach, but said they did not routinely investigate “retrospective breaches of the Covid-19 regulations” — which was an odd thing to say, given that it is quite hard to investigate something that hasn’t happened yet, so most criminal investigations tend to be retrospective.
Nor is it unusual for Covid regulation breaches by others not only to be investigated but also punished, typically by a secretive procedure that not only defies open justice but appears to be counterproductive in terms of deterrent effect, as Tristan Kirk explained in the Evening Standard: London’s Covid-19 rule breakers fined over £1m in closed-door courts
“The vast majority of coronavirus prosecutions in the capital have been dealt with by the court’s Single Justice Procedure (SJP), which allows magistrates to convict and sentence defendants in private hearings with fines of up to £13,000 handed out. Analysis of the prosecutions by the Standard reveals a total of £1,190,389 in fines have now been dished out in London for Covid-19 breaches, with defendants also ordered to pay more than £250,000 in legal costs and fees.”
In a thread on Twitter, Kirk goes on to show some of the statistics, including the number of cases thrown out of court for inadequate evidence or other problems. None of this is being properly scrutinised.
See also: David Allen Green, Law and Policy Blog, The lack of care about the Downing Street rule-breaking is more concerning than the rule-breaking itself
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CONTEMPT OF COURT — Committal order — Civil contempt: Navigator Equities Ltd v Deripaska, 30 Nov 2021  EWCA Civ 1799;  WLR(D) 607, CA
COSTS — Discretion of court — Offer of settlement: Langer v McKeown, 26 Nov 2021  EWCA Civ 1792;  WLR(D) 602, CA
EMPLOYMENT — Contract of employment — Disciplinary proceedings: Burn v Alder Hey Children’s NHS Foundation Trust, 30 Nov 2021  EWCA Civ 1791;  WLR(D) 606, CA
EUROPEAN UNION — Social security — Child benefit: Carrington v Revenue and Customs Comrs (WC v Revenue and Customs Comrs), 26 Nov 2021  EWCA Civ 1724;  WLR(D) 600, CA
HUMAN RIGHTS — United Nations Security Council sanctions — Effective remedy: R (Youssef) v Secretary of State for Foreign, Commonwealth and Development Affairs, 26 Nov 2021  EWHC 3188 (Admin);  WLR(D) 603, QBD
IMMIGRATION — Leave to enter — Multiple entry visit visa: Hussain v Secretary of State for the Home Department, 26 Nov 2021  EWCA Civ 2781;  WLR(D) 601, CA
PRACTICE — Pleadings — Extrapolated claims: Standard Life Assurance Ltd v Building Design Partnership Ltd (Standard Life Assurance Ltd v Gleeds (UK)), 29 Nov 2021  EWCA Civ 1793;  WLR(D) 605, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
UK Human Rights Blog: Grace period in a time of Covid: R (Babbage) v Secretary of State for the Home Department  EWHC 2995 (Admin), QBD (Soole J)
Law and Religion UK: VAT, Church Measures and state regulation: Reverend Jane Taylor (t/a Asmill House Retreats) v Revenue & Customs  UKFTT 405 (TC), FTT
RPC Perspectives: GC Field & Sons Ltd — SDLT discovery assessments held to be invalid: G C Field & Sons Ltd v Revenue & Customs  UKFTT 297 (TC), FTT
Law & Religion UK: The Abortion Act 1967 and Down Syndrome: Crowter: R (Crowter) v Secretary of State for Health and Social Care  EWHC 2536 (Admin);  WLR(D) 495, DC
Free Movement: Cessation, Article 3 and removing refugees from the UK: PS (cessation principles) Zimbabwe  UKUT 283 (IAC), UT (IAC)
Panopticon blog: Duchess of Sussex v Associated News Ltd — the Court of Appeal Rules: HRH Duchess of Sussex v Associated Newspapers Ltd  EWCA Civ 1810, CA
Inforrm's blog: Case Law, Strasbourg: Biancardi v. Italy, Newspaper right to be forgotten order did not breach Article 10: Biancardi v Italy (Application no. 77419/16);  ECHR 972, ECtHR
Other recent publications
Is The Asylum Seekers (Return To Safe Countries) Bill unsafe?
Hannah Shewan Stevens on Each Other discusses the Asylum Seekers (Return to Safe Countries) Bill, introduced by Conservative MP Peter Bone, which is currently going through Parliament. The Bill would “require asylum seekers who have arrived in the United Kingdom from a safe country to be immediately returned to that country”, such as France.
“Critics, however, have argued that a stricter approach to immigration and asylum seekers is a disproportionate reaction to the numbers the UK actually receives. Globally, there are about 26 million refugees and 86% of them live in lower or middle-income countries, while 73% are hosted by States neighbouring their countries of origin. The UK saw 29,456 asylum applications in 2020, compared with 95,600 in France and Germany’s 122,170.”
Speaking out in the public interest and children’s privacy rights? The Eleanor Bradford adoption breakdown saga
Alice Twaite on the Transparency Project blog discusses the perspective of an adoptive mother who felt she had no option but to ask for her older child (15) to return to care, and the comments provoked by her telling her story in the media. The story, says Twaite,
“neatly illustrates the need for vigilance and debate in the ongoing endeavour of finding the right balance between freedom to discuss vital public interest issues concerning a wider group of children and adults that are otherwise in the dark, with individual children’s privacy rights”.
How we marry is changing, and the law needs to keep up
In a guest post on the Law & Religion UK blog, Rajnaara C Akhtar, Rebecca Probert and Sharon Blake look at the reform of weddings law in England and Wales in the light of a recent Briefing Paper for the Law Commission, When is a wedding not a marriage? Exploring non-legally binding ceremonies. It highlights that “both religious and cultural diversity and the increasing number who do not identify with any religion at all are key aspects of modern society, to which the law has been slow to respond” in developing the law relating to weddings.
Counterfeiters beware: It all ends in tiers…
The RPC Perspectives blog discusses the Intellectual Property Office’s recent 2020–2021 IP Crime and Enforcement Report, which highlights the current and emerging threats surrounding counterfeiting and details the work being done by the IP Crime Group (which is made up of enforcement agencies and industry representatives) to prevent IP crime.
Dates and Deadlines
Celebrating 30 years of Partnership with the Children Act 1989
Webinar: Friday 17 December, 11 am-12:15 pm
BASW England will be hosting a virtual celebratory webinar to mark the 30th
anniversary of the ratification of the Children Act 1989. Chaired by James Blewett, Chair of BASW England Children & Families Group, with speakers to include Sir James Munby, Sir Andrew McFarlane P, and Wendy Rose OBE.
Book online at www.basw.co.uk/events
Tweet of the week
is from barrister Barbara Rich on a case of what might be called academic lawsplaining.
The case concerned proprietary estoppel.
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.