Weekly Notes: legal news from ICLR, 6 July 2020

This week’s roundup of legal news and commentary includes a renewal for justice, more coronavirus regulations, and a crowdfunding fiasco.

Photo by Victor He on Unsplash

Courts

The Lord Chancellor Robert Buckland last week published a ‘renewal for justice’ plan for the courts, designed to “ramp up the work of the courts” as lockdown restrictions are eased and efforts made to tackle the vast (though largely pre-existing) backlog of cases awaiting disposal. Introducing the plan, Buckland noted:

“The Prime Minister was right when he said that the whole country needs to prepare for an extended period of managing the threat of the virus and this demands a new perspective on the way we deliver justice.

His spending commitment yesterday shows just how serious we are taking this as a government. We have set aside £142 million to improve more than 100 courts across the country, give 750 more court rooms remote capability.

This will more than double the maintenance budget meaning that, combined with the £48 million already set aside this year, it will be the biggest single investment in the courts and tribunals estate in over a decade.”

See also Courts and tribunals recovery update: Written statement — HCWS329

The plan is set out in more detail in COVID-19: Overview of HMCTS response. This states:

“It is clear that while physical distancing restrictions remain in place, we will not be able to work ‘as normal’: fewer court and tribunal hearing rooms can be used, and cases cannot be listed as efficiently as usual (because the court estate cannot safely accommodate pre-Covid levels of use), and we cannot safely have all staff working in their normal locations. … Judges, staff and users have therefore been working closely together as we have developed some more radical steps which we will need to implement to be able to recover our operations, and to ensure people will continue to be able to seek and secure justice through the courts and tribunals.

It is just faintly possible that not everyone will accept the blithe assumption behind the phrase “listed as efficiently as usual” , but perhaps the most vociferous objection from practitioners (judging by the reaction so far on Twitter) is likely to be to the “radical step” of extending court hours to help dispose of more cases sooner and “maximise use of the fee paid judiciary”.

Less contentious proposals include the opening of more existing court buildings and the adaptation of other public buildings, know either as “Nightingale” courts, after the emergency temporary hospitals of that name (after the 19th century nursing pioneer Florence Nightingale) or “Blackstone” courts (after the 18th century legal sage of that name). There will also be an increase in the use of audio and video technology, and further rollout of Cloud Video Platform (CVP) as the preferred channel for remote hearings. Extra laptops will be made available to staff to help them work more flexibly.

The plan notes that remote hearings are not appropriate for “complex contested cases”, so the expansion in the capacity for physical or hybrid (part physical part video) hearings will therefore continue, particularly in family courts, where cases are often urgent, and in criminal cases, where there is an additional need for the accommodation of juries.

See also: Law Society Gazette,

It also talks but that’s not the point. HMCTS reported last week that “more than 100,000 civil money claims have been issued in just 18 months using HM Courts and Tribunals Service’s online service”. The digital service, launched in March 2018, allows people that are owed sums of up to £10,000 to resolve their dispute completely online.

Almost 9 in 10 people using the service have been satisfied or very satisfied with it, say HMCTS, with claims now being issued in minutes, not days.

The Ministry of Justice has launched a six-week consultation on post-EU reforms for British courts.

“Views are being sought from the legal sector, business, and the judiciary on which British courts should have the power to depart from retained EU case law. At present, only the UK Supreme Court and the High Court of Justiciary in Scotland will have this power from 31 December 2020.

Under proposals set out by the Lord Chancellor Robert Buckland, more courts would be given the power to move away from those EU case laws which we retain — such as those concerning our fisheries, borders or taxes. This will enable the law to evolve more flexibly to recognise the UK’s changing status following on from our departure from the EU, as we take back control of our laws.

The proposals canvassed envisage extending the power to depart (or “P2D” perhaps) to

  • The Court of Appeal of England and Wales, the Inner Court of Session in Scotland, the Court of Appeal Northern Ireland and equivalent level courts throughout the UK;
  • or, those courts and the High Court of England and Wales, the Outer House of the Court of Session in Scotland, The Sheriff Appeal Court in Scotland, the High Court of Justiciary, and the High Court in Northern Ireland.

This seems quite important, constitutionally. We will monitor the situation and hope to report any commentary we find.

This consultation closes at 11:59pm on 13 August 2020.

Coronavirus regulation

Having announced on 23 June that the public restrictions on movement would be relaxed in order to permit, among other things, pubs to open on Saturday 4 July (Independence Day, supposedly), the government did not publish its amended statutory instrument until the day before. The Health Protection (Coronavirus, Restrictions) (№2) (England) Regulations 2020 (SI 2020/684) were made at 10 a.m. on 3 July 2020 and laid before Parliament at 3 p.m. that same day. They came into effect early the following morning.

The government also published a 44-page guidance document for the hospitality industry: Keeping workers and customers safe during COVID-19 in restaurants, pubs, bars and takeaway services. Given that it was dated 3 July (though actually published earlier), it didn’t give the industry much notice on how best to prepare for the opening of the floodgates the next day. It suggested among other things that:

“The opening up of the economy following the COVID-19 outbreak is being supported by NHS Test and Trace. You should assist this service by keeping a temporary record of your customers and visitors for 21 days, in a way that is manageable for your business, and assist NHS Test and Trace with requests for that data if needed.”

The industry responded by asking for guidance on exactly what was required. See Morning Advertiser, Calls for clarity on pub customer data and NHS Test and Trace and How are the world’s reopened pubs and bars collecting customer data?

However, in Leicester the lockdown had to be reimposed, after a spike in new cases, with a separate set of regulations to manage it: The Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020 (SI 2020/ 685). If selective local lockdowns are going to become a feature of the relaxation of the national lockdown, then it might make sense to issue a general set of regulations enabling this to be achieved without further legislation, conferring relevant powers on any local authority needing to use them.

See Obiter J, Law and Lawyers blog: The Health Protection (Coronavirus, Restrictions) (№2) (England) Regulations 2020, which itemises the main (relaxation) regulations, and observes in relation to the Leicester Lockdown regulations that

“The regime applicable to Leicester is, broadly-speaking, similar to the regime which applied across England under the earlier regulations. The ‘protected area’ is defined by postcodes and addresses specified in Schedules 1 and 2.”

Litigation funding

A barrister who was using CrowdJustice to solicit funds for a proposed claim against her own chambers and the campaign group Stonewall has complained about the way the crowdfunding platform suddenly took her fundraising page off air after receiving complaints about its wording. According to Roll On Friday:

“Allison Bailey has accused Garden Court Chambers and Stonewall of indirectly discriminating against her by treating her as ‘bigoted’ for holding gender critical beliefs, the core of which is that biological sex is immutable and people cannot change sex.

Bailey claims that Stonewall sought to ‘intimidate and silence’ her by telling Garden Court Chambers that it needed to take action against her or risk damaging its relationship with the influential charity, which certifies the set as a ‘Stonewall Diversity Champion’. Last November Garden Court Chambers investigated Bailey and upheld some of its findings, prompting her to propose her employment tribunal action.

Bailey, who is a lesbian, alleges that Stonewall targeted her because she helped found LGB Alliance, a gay rights group which has expressed misgivings about Stonewall’s direction and power.”

She accused CrowdJustice of censoring her claim, but they defended the suspension of her case page on the ground that it had used unecessarily inflammatory language. When they restored the page, much of her text had been removed or, as she put it, censored. Her case page now has a Statement from CrowdJustice. Despite this, it has managed to raise the £60,000 target.

Further reading:

Another crowdfunded case is, at present, still at the prospective stage.
Exploring the Prosecution of Mr Dominic Cummings is a fundraising appeal organised by Mahsa Taliefar on behalf of Aaron Soni (senior partner at Waterfords solicitors) via the platform GoFundMe. Taliefar has sought legal advice on the prospects of a successful private prosecution of the Prime Minister’s closest adviser, notorious for having apparently flouted the then applicable lockdown regulations (first edition, now replaced by No 2 version discussed above) back in May: see Weekly Notes, 1 June 2020.

The GoFundMe page now records:

“Having received an updated advice from Ben Douglas Jones QC and Nathaniel Rudolf advising that a private prosecution under the The Health Protection (Coronavirus) Regulations 2020 is not possible, we have decided to focus and explore other avenues.”

It seems the advice was initially more optimistic. That was before Matthew Scott, Barristerblogger, wrote that: There is no prospect of bringing a private prosecution against Dominic Cummings, citing another barrister, Phillip Sinclair, who had pointed out in a tweet that Mr Douglas-Jones and Mr Rudolf appeared to have overlooked Section 64 of the Public Health (Control of Diseases) Act 1984. That provisions limits the persons who can bring a prosecution under the Coronavirus Regulations to

“(a) a relevant health protection authority, (b) a body whose function it is to enforce the provision or regulation in question, or (c ) a person who made (or whose predecessors made) the regulation in question.”

Scott’s blog post, while disavowing any intention of providing “a replete exegesis of my own on the law surrounding private prosecutions generally” does discuss other proposed (and crowdfunded) cases, such as that by Marcus Ball against Boris Johnson (subsequently halted by the High Court: R (Johnson) v Westminster Magistrates’ Court [2019] EWHC 1709 (Admin); [2019] 1 WLR 6238; [2019] 2 Cr App R 30; [2019] WLR (D) 391. (See also Weekly Notes, 10 June 2019.)

Other news and commentary

The Secret Barrister: The truth about the government’s claims to have “ended the rough sex defence”

The fact is, there isn’t such a thing as a “rough sex” defence, to murder or serious assault, because a person cannot consent to being injured or killed. The so-called defence arises out of cases where alleged killers have suggested that the fatal injuries were caused during consensual sex. This can have the effect of negativing the necessary intent for murder. Hence the public concern. The blog post, which is essentially a thread of screenshot tweets, attempts to disentangle some of the misunderstandings.

Euractiv: EU data watchdog to ‘convince’ Commission to ban automated recognition tech

Automated recognition technologies in public spaces should be temporarily banned, says the European Data Protection Supervisor (EDPS), arguing in favour of a moratorium.

The latest episode of Law Pod UK really drills down into the matter of Dentists and Covid-19, and the inevitable risks of “aerosol generating procedures”. In this podcast Rosalind English talks to the head of indemnity at the British Dental Association Len D’Cruz about the challenges facing the dental profession during lockdown and the even greater hurdles to be faced after dentists resumed practice on the 8th of June 2020.

Bloomsbury Professional blog: Marriage in hope and expectation — but maybe not in law

Paul Magrath on some old cases about Scottish customs and conventions relating to marriage.

Solicitors’ Journal: Supreme Court ruling will ‘encourage divorce tourism’

Comment on the recent judgment of the UK Supreme Court in Villiers v Villiers [2020] UKSC 30 which has also been the subject of two linked posts on the Transparency Project blog by Polly Morgan, who says:

“It’s about divorce law, EU law, freestanding spousal maintenance claims, and the kind of bitterness that can only accrue during seven year-long divorce proceedings.”

The Bar exams are less exam and more Takeshi’s Castle: guest post by pseudonymous contributor “Dame Judi Bench” on the Secret Barrister blog, looking at the Covid-caused fiasco facing this year’s Bar students. (Takeshi’s Castle is a famous Japanese game show featuring fiendishly difficult challenges.)

New research reveals full impact of Covid-19 restrictions on the self-employed Bar (Bar Council). A report headed Bar Council Heads of Chambers Survey — Summary Findings June 2020 has revealed the challenge faced by many self-employed barristers in England and Wales as a result of the Covid-19 lockdown.

Law Society: Coronavirus (COVID-19) information for members

UK Human Rights Blog: Are “squalid” prison conditions and the response to the Covid-19 pandemic breaching human rights?

Coronavirus in care homes: What the latest ONS research tells us

Two publications by the Office of National Statistics: (a) the first results of a new large scale survey which look at how coronavirus has been affecting staff and residents of care homes; and (b) an update of earlier figures on deaths involving COVID-19 in the care sector.

The results show that half (56%) of these care homes had at least one confirmed case of COVID-19, and there have been 66,112 deaths of care home residents (wherever the death occurred) since the start of the pandemic up to 12 June.

And finally…

is from Barristers of Colour and reflects the need to think more proactively about everyday racism.

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.