Weekly Notes: legal news from ICLR, 9 December 2019

This week’s roundup of legal news and commentary covers crime, probation, international justice, data protection, Christmas music — and as little as possible about the impending election.

Photo by Skitterphoto from Pexels

Crime

The Court of Appeal has quashed the convictions of three men following a referral by the Criminal Cases Review Commission on the basis of police misconduct. Winston Trew, Sterling Christie and George Griffiths, together with a fourth man who has yet to be traced, Constantine Boucher, became known as the “Oval Four”. They have long campaigned against the injustice done to them when convicted in 1972 on the basis of disputed police evidence of confessions of mugging offences on the London Underground. In a statement, the CCRC explained:

“The three men, and one other, were convicted together at the Old Bailey on 8th November 1972 of assaulting a police officer and attempted theft. Mr Christie was also convicted of the theft of a police woman’s handbag. Messrs Trew and Christie and another co-defendant, were sentenced to two years’ imprisonment. Mr Griffiths was sent to Borstal (a youth detention centre).

The co-defendants, who became known as the Oval Four, had been arrested together on 16th March 1972 at Oval Station on the London Underground by a special patrol set up to target thefts on the Northern Line. The operation was led by Detective Sergeant Derek Ridgewell who was also the key prosecution witness.

All four men appealed. Their appeals against conviction failed but the appeals against sentence succeeded and the prison sentences were reduced from two-years to eight months.

The case was taken up by the CCRC after Trew’s researches had helped another man, Stephen Simmons, convicted on DS Ridgewell’s testimony to win his appeal. He was able to adduce fresh evidence demonstrating Ridgewell’s involvement in crime (he had pleaded guilty in 1980 to conspiracy to steal and had been sentenced to seven years’ imprisonment; he died in prison in 1982) and earlier concerns about the unreliability of his evidence.

There is a good writeup of the case by veteran crime reporter Duncan Campbell in The Guardian. What we don’t appear to have at the moment is a published judgment, but given the public interest in the case we would expect one to become available soon, via the Judiciary website and/or BAILII. Surprisingly, the earlier case of R v Simmons [2018] EWCA Crim 114 is only available behind a paywall via Westlaw. The Trew case highlights importance of public access to information about such cases.

Probation

The Ministry of Justice has started a fresh procurement competition for its privatised probation services, despite earlier problems with the outsourced regime, known as Transforming Rehabilitation. As Russell Webster on his blog explains:

“The system performed badly and following years of criticism from the National Audit Office and Her Majesty’s Inspectorate of Probation, the government decided to redesign it. The new version returns all offender management responsibilities to the National Probation Service but still retains a reduced role for the private sector. The new contracts which are now split into 12 regions (11 in England and one in Wales) now invite bids for organisations to deliver unpaid work (which used to be known as “community service” or “community punishment”) and accredited programmes — the groupwork interventions designed to help people on probation change their thinking and behaviour in order to stop offending.

The total value of the new contracts will be £1,263 million (or £1.23 billion) over five years. While initial contracts are for five years, there is the possibility of extending them to eight years with six possible extension periods of six months each. Webster comments that it may seem an odd time to be launching such a competition, just before a general election, but the process is likely to take a long time and was overdue. The better question might not be when, but why, or at any rate, why now?

As Penelope Gibbs comments in a guest post on Webster’s blog, “The reform of Transforming Rehabilitation was desperately needed but maybe it demanded more haste less speed.” Her concern is that the programmes bidders are expected to apply for have not been properly evaluated.

“ The problem with the new TR model is that private providers are being asked to take on an unquantifiable risk. The two main programmes which will be outsourced are the Thinking Skills Programme and Building Better Relationships (BBR). Neither of these programmes has an impact evaluation.”

It seems unfair, she says, that private and voluntary sector organisations should be expected to run these unevaluated programmes, given that

“Bidders will be asked to cost out and commit to running programmes which have no track record. With no impact evaluations, there is no data on the right way to run the programmes.”

Data protection

The Sunday Times this weekend reported that under an arrangement entered into earlier this year, Amazon

“can access ‘all healthcare information’ gathered by the NHS at the UK taxpayers’ expense, including ‘symptoms, causes and definitions’. It also gets ‘all related copyrightable content and data and other materials’, excluding patient data. Amazon can use the information to make, advertise and sell ‘new products, applications, cloud-based services and/or distributed software’ and can share it with third parties.”

Amazon is not paying for the data, which it can use to create and sell products such as a healthcare app. The deal with Amazon’s Alexa voice-bot was announced in July, and is described in a blog on the NHS Digital site, How we are talking to Alexa. It begins by explaining that the NHS already makes data available to many other organisations:

“There are currently over 1,500 organisations consuming content from the NHS website. Our syndication service allows these third-party partners to integrate our clinically approved content and service information through free application programming interfaces (APIs) or widgets”

The purpose of the Alexa deal was to facilitate the development of a voice-activated and responsive app or “skill” to provide health care advice to those of limited mobility for whom the Alexa interactive device offers convenient access to information via the internet. NHS proceeded with caution, they say, because:

“When working with any organisation, especially commercial entities, we are aware that they have different priorities to the NHS and we, as a nation and as NHS staff, are very protective of our health system’s non-commercial ethos. This makes it a sensitive area to operate in, but, fundamentally, we are happy that Amazon wants to be able to offer trusted health information to answer questions from Alexa users”

The blog post deals with the concerns it anticipates readers will have, such as privacy, and the fact that the data is being given away for free. In response to the Sunday Times story, NHSX, a new body set up to ensure that staff and patients have the technology they need, said: “No patient data is being provided to this company by the NHS, which takes data privacy extremely seriously and has put appropriate safeguards in place.”

If patient data is not at risk, then the point of the story must be that the other data collected by the NHS is also valuable and shouldn’t have been given away for free (hence the story’s title, “Amazon ready to cash in on free access to NHS data” (£)).

The contract has been analysed by Privacy International, who note that parts of the documents disclosed under a Freedom of Information request have been redacted, including “lines describing the consequences for Amazon if they were to fail to meet the terms of the agreement”, which “leaves us wondering how much time the Department of Health can possibly be requested to give to terminate the contract, or why it was deemed necessary to redact it.” They call for more transparency, not least in order to reassure the public that there isn’t anything sinister or underhand going on: “we should not be naïve about the intentions of big companies that are preying over the NHS”.

This reaction reflects a more general anxiety about the “selling off” or “privatising” of the NHS, which has been a feature of electioneering. And this concern is reflected in a story on the same day in the Observer, Patient data from GP surgeries sold to US companies. This reports that

“US drugs giants, including Merck, Bristol-Myers Squibb and Eli Lilly, have paid the Department of Health and Social Care, which holds data derived from GPs’ surgeries, for licences costing up to £330,000 each in return for anonymised data to be used for research.”

The data is said to be anonymised, but appears to be patient data, which makes this more of a data protection story than the Sunday Times one. Are patients aware that this is happening? If given, how informed is their consent? It has been suggested that de-anonymising such data is perfectly feasible.

You may recall being asked to opt-out of having your medical data collected by your local GP surgery. Did you opt out? If not, it may be because you can see the long term benefits to society of learning more about people’s health. In a way, it’s a bit like agreeing to the re-use of donated organs after your death. (I speak as the beneficiary of one such donation, in my case a pulmonary heart valve.) But you don’t have to be an anti-vaxxer to be concerned about the mis-use, or indeed the exploitation, of your health data for the profit or gain of corporate shareholders, whether in the UK or the US or anywhere else, especially if such profiteering is at the expense of the NHS which exists for everyone’s benefit.

International justice

This week at the International Court of Justice in The Hague, the state of Myanmar, represented by its leader Aung San Suu Kyi, faces a charge of genocide filed last month by The Gambia. The charge relates to Myanmar’s treatment of Rohingya Muslims, hundreds of thousands of whom have been forced by enthnic violence to flee to neighbouring Bangladesh since 2016. The case includes allegations of mass murder, rape and destruction of communities in Rakhine state. According to the Guardian:

“If the ICJ takes up the case, it will be the first time the court in The Hague has investigated genocide claims on its own without relying on the findings of other tribunals, such as the international criminal tribunal for the former Yugoslavia, which it consulted for claims against Serbia and Croatia.

Under the rules of the ICJ, the application argues, member states can bring actions against other member states over disputes alleging breaches of international law — in this case the 1948 Convention on the prevention and punishment of the crime of genocide.

The Gambia, a member of the Organisation of Islamic Cooperation, has taken the legal lead in drafting the claim against Myanmar. It is being supported by other Muslim states.”

The hearing this week is a preliminary one, known as a provisional measures procedure, for the court will consider whether it has jurisdiction and whether there is a plausible case to answer. The hearing it will be livestreamed.

The International Court of Justice (ICJ) is not to be confused with the International Criminal Court (ICC), also seated in The Hague, whose judges have already authorised a full-scale investigation against Myanmar over the Rohingya situation (see The Guardian: War crimes court approves inquiry into violence against Rohingya).

Recent books

The Killing in the Consulate: Investigating the Life and Death of Jamal Khashoggi, by Jonathan Rugman (Simon & Schuster, £20) is what the Financial Times calls a “meticulous account” of the killing of the Saudi Arabian journalist by a hit squad in the Saudi consulate in Istanbul in October 2018 and its aftermath. Despite initial denials and then a series of confusing cover stories, it seems fairly plain now that, far from being a “rogue operation” as suggested, the assassination was done to order, and the order came from the top. The CIA was confident that the kingdom’s effective ruler, Mohammed bin Salman, or MbS as he is known, was behind the killing. Rugman’s book, says David Gardner in the FT, is “rich with telling detail and narrated with unobtrusive skill”.

ICLR news

ICLR have slightly bucked the trend from print to digital by launching a new paper product. Leading Planning Cases offers in one convenient volume the 25 most frequently cited authorities used in planning cases, thus avoiding the need to constantly reprint these particular cases every time bundles are prepared.

The new book has been prepared in collaboration with leading planning law practitioners such as Richard Ground QC of Cornerstone Chambers, and the Planning Liaison Judge, Mr Justice Holgate, President of the Upper Tribunal (Lands Chamber). The cases chosen span from Cooke J’s decision in Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281 through to the Supreme Court’s recent judgment in Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33; [2019] 1 WLR 4317.

You can read more about the composition of the volume and how it is intended to be used here: Leading Planning Cases.

Dates and deadlines

Gordon Exall on his Civil Litigation Brief blog is running his annual Christmas carol re-wording contest again this year (the fourth). All that is required to enter is that you make, or agree you will make, a donation to a food bank: after that is (as ever) down to skill, talent and a large amount of luck.

This year it is more challenging. Taking any traditional Christmas Carol or song adapt -or re-write- two verses (and only two verses) that are relevant to lawyers or litigators. The winner gets a teddy bear wearing a T-shirt saying “Best Lawyers in the World”. You can read the rules here.

You can now see a running account of the contestants so far on the blog. There are some absolute crackers. But no reason not to have a go yourself. Treat the existing ones as precedents, not to be blindly followed, let alone distinguished, but applied with wit and verve to new tunes or rhymes.

Closing date is tomorrow, 10 December.

And finally…

concerns that Amazon data giveaway story we mentioned earlier.

“Alexa, show me a jokey tweet…”

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.

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.