Weekly Notes: legal news from ICLR, 9 March 2020
This week’s roundup of legal news and commentary includes a new Victims’ Code, domestic abuse, the rule of law, court reporting, terrorism, and advice on coping with Covid-19.
A draft new Victims Code was published on 5 March 2020 marking the launch of a consultation which will run to 16 April 2020. The proposed new code sets out the “minimum level of service victims can expect from criminal justice agencies such as the police and courts, whether they choose to report the crime or not”.
The existing Victims’ Code came first into effect in 2006 as part of the Domestic Violence, Crime and Victims Act 2004 and replaced an earlier Victims’ Charter dating back to 1990. It was updated in in 2013 and again in 2015. The new Code is structured so that it focuses on 12 overarching rights:
- To be able to understand and to be understood.
- To have the details of the crime recorded without unjustified delay
- To be provided with information when reporting the crime
- To be referred to victim support services and have services and support tailored to your needs
- To be provided with information about compensation
- To be provided with information about the investigation and prosecution
- To make a Victim Personal Statement
- To be given information about the trial, trial process and your role as a witness
- To be given information about the outcome of the case and any appeals
- To be paid expenses and have property returned
- To be given information about the offender following a conviction
- To make a complaint about rights not being met
The consultation is said to “pave the way for a Victims’ Law, which will underpin victims’ rights in legislation and further reinforce the support offered from the criminal justice system”.
The Sentencing (Pre-consolidation Amendments) Bill, an essential paving measure for the Code, was introduced in the House of Commons on Wednesday 4 March following its third and final reading in the House of Lords. The Bill, originally introduced in May 2019 and reintroduced after the 2019 general election, is designed to give effect to Law Commission recommendations relating to commencement of enactments relating to sentencing law and to make provision for pre-consolidation amendments of sentencing law.
The Law Commission explains the purpose of the Bill:
This short technical Bill is necessary to pave the way for the main Sentencing Code Bill to be introduced as a consolidation Bill. Once passed, the Sentencing Code will introduce a “clean sweep” of the old sentencing law so that anyone convicted once the Code is in force would automatically be sentenced under the current law.
This would apply for every offence no matter when it was committed, with limited and partial exceptions where applying the current law would expose a person to a penalty greater than the punishment available at the time the offence took place.
The Sentencing Code would simplify the law of sentencing procedure and bring it into one statute, whilst also removing unnecessary provisions and updating the language. The changes will reduce delays by making the sentencing process easier, simpler and clearer.
Domestic Abuse Bill
Following through on the pledge to bring the bill back to Parliament, it includes new measures, such as requiring tier one local authorities (county councils and unitary authorities) in England to provide support and ensure safe accommodation for victims and their children. The bill will also improve on the previous pledge to ban abusers from cross-examining their victims in the family courts, to apply to all family proceedings where there is evidence of domestic abuse.
The “previous pledge” to ban abusers from cross-examining their [alleged] victims in family courts has sadly (and scandalously) remained just that — no more than a pledge — for many many years, apparently not worthy of the time and resources needed to implement it, while who knows what other nonsense got priority.
The Bill also introduces Domestic Abuse Protection Orders and Protection Notices designed to protect victims immediately and offer flexible, longer-term protection by imposing requirements on perpetrators, together with an offer to fund any court costs for police implementation.
A government factsheet on Cross-examination in the family court says that perpetrators and alleged perpetrators of abuse will be prohibited from cross-examining their victims in person in the family court proceedings (and vice versa) in England and Wales.
Finally, we are giving the family court the power to appoint a public-funded advocate to carry out the cross-examination where necessary. Guidance will be issued about the scope and nature of that role.
Other much-discussed features of the Bill include a plan to make domestic abusers take lie-detector (polygraph) tests on release from prison, and ministers are considering proposals to limit a “so-called ‘rough sex’ defence” to homicide, in which defendants claim that consensual violent sexual activity led to the victim’s death.
Read the Bill’s Explanatory Notes pdf.
Last month Dr Julie Doughty on the Transparency Project blog commented on a report by academics at the University of Sussex, entitled What is the experience of lawyers working in private law children cases? (11 February 2020) which, she said, “paints a very alarming picture of the way in which some family courts are dealing with cases where there is domestic abuse, ignoring the procedures put in place by court rules”. A survey by the researchers asked lawyers about the application of Practice Direction 12J of the Family Proceedings Rules 2010, the procedure that all family court courts are required to follow when there are allegations or evidence of domestic abuse. “Unsurprisingly, the researchers call for more and improved training on these issues.”
You can read her post here: Lawyers highlight poor practice in private law cases and the impact on families
Rule of Law (Enforcement by Public Authorities)
Last week Hansard (Volume 672, 03 March 2020, 2.05 pm) recorded that Sir Christopher Chope, an MP who till now may be best remembered for his attempts to block the progress of legislation against a form of voyeurism known as “upskirting”, begged to move the House of Commons, under the ten minute rule, for leave to bring in a Bill
“to require public authorities to exercise their statutory powers to investigate and take enforcement action for breaches of the law; to make provision for sanctions for failing to take such action; and for connected purposes”.
He cited recent examples of where, in his opinion, the police had either failed to act where they should have done, such as the “recent events in Cambridge, where the police did nothing to prevent or to take action against blatant examples of criminal damage” during a protest by Extinction Rebellion, or had intruded where no crime was actually being committed, such as the recent case where Humberside Police logged a tweet as a non-crime hate incident (see R (Miller) v College of Policing  EWHC 225 (Admin)), and suggested that
“It is outrageous that the police are giving priority to matters that are not criminal while criminal activity, which is rife in our country, goes uninvestigated and unpunished.”
The Bill would reconfirm, he argued, that
“the main responsibility of law enforcement authorities under the rule of law should be to investigate and bring sanctions against those in breach of the existing law”.
Fraud, illegal immigrants, rogue landlords, “illegal activities by Gypsies and Travellers” and so forth could all do with a dose of proactive law enforcement, said Chope. And — no doubt as a measure of how effectively this new government is standing up for Tory party values of law and order — the Bill was duly allowed to be presented and read for the first time. The Rule of Law (Enforcement by Public Authorities) Bill will get its second reading on Friday 11 September (rather sooner than many of the actual cases that were adjourned in the criminal courts last week) and is now be printed (as Bill 99).
Updated media guidance
A new edition of guidance issued to court staff on supporting media access to courts and tribunals was launched at the Old Bailey last week, at a roundtable event chaired by Joshua Rozenberg, to discuss the continued importance of court reporting in an increasingly digital justice system. Unfortunately, but not untypically, the organisers did not think to invite anyone from ICLR to that event, so we’ve no idea what proposals were discussed to ensure that law reporting might continue to function in an increasingly digital justice system. Hopefully someone will write it up.
However, the guidance itself is primarily aimed at ensuring that media reporters are not obstructed in their attempts to provide fair and accurate reports of court proceedings, as by law they are entitled to do. The existence of the guidance (an earlier version was published in October 2018) does not seem to have stopped court staff from excluding from the building a reporter from the Law Society Gazette: see Weekly Notes, 24 February 2020. It would therefore probably be wise for every reporter covering a court to take with them a copy of the guidance, and be ready to refer to it before any court staff unaware of its contents, or if necessary to make an application to the judge or magistrates.
The new edition includes a revised protocol agreed between HMCTS, the News Media Association and the Society of Editors to govern the distribution of magistrates’ courts lists, registers and documents to the media, and specific guidance to courts and tribunal staff on handling high-profile hearings.
Public information campaign
The National Counter Terrorism Security Office has launched a new App to keep businesses updated and provide practice advice and guidance on how they can respond in the event of an attack. Powered by Urim, the Action Counters Terrorism (ACT) app is free for businesses and has been developed in partnership with industry specialists from Marks and Spencer and Highfield eLearning. (NB access to the app is for business/professional use only.)
NaCTSO has also launched a public information campaign with a short film being shown in cinemas across the country, highlighting possible signs of terrorist activity and explaining what the public can do to help officers. Called ‘Look Again’, the powerful production shows what sort of behaviour could indicate someone is planning a terrorist attack.
It then explains how members of the public can ACT to report their concerns online at gov.uk/ACT. The 60-second advert, which has already won a number of industry awards, will be on screens before many of the upcoming top-rated movies. It is also available online:
The government is updating its advice on the Number of coronavirus (COVID-19) cases and risk in the UK on a daily basis. At the time of writing, based on the World Health Organization’s declaration that this is a public health emergency of international concern, the UK Chief Medical Officers have raised the risk to the UK from low to moderate.
Anyone who suspects they may be infected should dial 111 or use the 111 online coronavirus service to find out what to do next.
Middle Temple has issued its own Coronavirus Guidelines urging members and staff: “If you are feeling unwell, please stay at home and do not attend work or events at the Inn”. Hand sanitiser and tissues have been placed around the Inn for people to use.
Like most businesses, ICLR has held its own “Cobra” style meeting to determine what actions to take to deal with current and future Covid-19 risk scenarios. This may include staff working from home, but please be assured that we will continue to read and respond to emails and answer the telephone even if we do not travel to the office in order to do so. We are well connected via the Cloud to all the systems and information we need.
Coronavirus and the courts
HM Courts and Tribunals Service does not appear to have issued any specific guidance relating to coronavirus outbreak or the conduct of litigation in the event of any worsening of the situation or a lockdown situation. However, as we reported last week, the official government Action Plan did include a statement that HMCTS “has well established plans to deliver key services to protect the public and maintain confidence in the justice system”.
The likelihood is that these plans may well include making rather more aggressive use of video-based hearings and online procedures, as Paul Magrath speculates by comparison with the situation in China, in The Lawyer: Coronavirus and the courts: how will a pandemic affect the conduct of litigation?
Coronavirus and crime
In a recent blog post, Max Hardy considers the potential for crimes deriving from infection with Covid-19. “It is a crime to deliberately infect someone with a fatal or life limiting disease. It is, also, a crime to do so recklessly and that should give everybody pause for thought.” He compares the situation with those who have HIV and choose not to divulge their status or take the necessary precautions: see Corona Caught to Crown Court – Sick Criminals?
See also: CrimeLine (via Twitter) Coronavirus and the Criminal Justice System – a thread on what might happen (including measures the government might take under the Civil Contingencies Act 2004).
Coronavirus and personal data
The Guardian reports that a health alert app used to update people in South Korea on the latest risks of contagion is revealing a lot of embarrassing personal data about the movements of people testing positive for Coronavirus. ‘More scary than coronavirus’: South Korea’s health alerts expose private lives
Keeping it Clean with Tort Law
Silenced Voices: Glenn Greenwald
Each month Lucy Popescu in The Literary Review highlights the plight of a writer whose freedom of expression is threatened or who has been imprisoned or harassed by public authorities. Often she will draw attention to a campaign organised by PEN or some other organisation, to which readers can contribute, urging the relevant authorities to free the writer or relax the restrictions imposed.
This month, the writer is Glenn Greenwald, a former lawyer and now investigative journalist living in Rio de Janeiro, but probably best known for his work in helping Edward Snowden to expose classified NSA documents. Greenwald, who is married to the Brazilian congressman David Miranda, is co-founder of the investigative news website The Intercept and a vocal critic of Brazil’s President Bolsonaro. The Intercept has been publishing reports on irregularities in a corruption investigation called Operation Car Wash, which has been looking into a money laundering of the profits of crime involving many members of the political and business elite.
In consequence, Greenwald has been the target of trumped up federal prosecutions accusing him of cybercrimes and of other forms of official harassment, as well as death threats containing detailed information only known to the state. PEN and other press freedom groups are said to be monitoring the situation.
What’s in store for judicial review?
Matthew Flinn on the UK Human Rights Blog considers the Government’s proposed Constitution, Democracy & Rights Commission and its apparent intention to consider changes to our system of judicial review, as foreshadowed in page 48 of the Conservative Party Manifesto.
Free speech in the UK: it’s the business of parliament, not Ofcom, to judge what is OK to publish
Jeffrey Howard on Inforrm’s blog argues that the government’s plans to give the media regulator, Ofcom, extensive powers to regulate the tech giants of the internet pose a significant risk to two fundamental political values: freedom of speech and democracy.
Interviews for pupillage and training contracts: advice from across the profession
Having heard that some websites are charging candidates as much as £200 an hour for such advice, Gordon Exall has collected on his Civil Litigation Brief blog the free advice of lawyers on Twitter on how to approach interviews for pupillage and training contracts. He sets out the advice sent in, and adds a number of links, including one to an amusing article on Legal Cheek by another lawyer, Colm Nugent, who tweets as Wigapedia, setting out 11 things not to do in a pupillage interview.
Family Court Reporting Watch Roundup
The latest roundup from the Transparency Project looks at media coverage of family court matters, newly published cases, transparency news and legal blogging.
Dates and Deadlines
Cafcass World Social Work Day Webcast
17 March 2020, 10–11 am.
As the largest social work organisation in the country, Cafcass will be celebrating World Social Work Day by hosting a webcast and encouraging external partners and Cafcass staff to join in. The webcast will be focussing on this year’s World Social Work Day theme which is “promoting the importance of human relationship’’. Panel members will be discussing the importance of feedback and the impact that this can have on the relationships between social workers and children.
Presenters include Jacky Tiotto , Cafcass CEO, and Professor Eileen Munro, Professor of Social Policy at LSE. Register via StreamGo.
Judicial Assistant in the Court of Appeal (Civil Division)
Closing date for applications: 20 March 2020, 23:55 hrs.
There are 21 posts available, for up to ten months, open to anyone with a 2:1 undergraduate degree or better. Interviews will take place in the week commencing 18th May 2020. Full details via the Justice.gov website.
Tweet of the week
Is from Jo Delahunty QC, celebrating International Women’s Day and the legal profession
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.