This week’s roundup of legal news and commentary includes a legal aid desert, courts in chaos, divorce reform, breach of privacy and contempt of court.

Human Rights

Legal aid ‘deserts’ impeding enforcement

In its report, Enforcing human rights (HC 669, HL Paper 171) published on 19 July 2018, the Joint Select Committee on Human Rights paints a depressing picture of the difficulties faced by many in enforcing their rights:

‘Access to justice is fundamental to the rule of law. We are concerned that the reforms to legal aid introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) have made access to justice more difficult for many, for whom it is simply unaffordable. Moreover, there are large areas of the country which are “legal aid deserts”, as practitioners withdraw from providing legal aid services since they can no longer afford to do this work following reductions in legal aid funding by successive governments over the past three decades.’

The report points out in its summary that: ‘Human rights have been central to the UK constitution and its legal system throughout its history.’ But: ‘ For rights to be effective they have to be capable of being enforced.’ That means, among other things, ‘adequate access to legal information, advice and assistance for everyone at all income levels and in all areas of the country’. It also requires a strong, independent judiciary and legal professions, as well as positive scrutiny by human rights institutions and (dare one say it) a more positive attitude in the media.

The committee makes a number of recommendations, including:

  • as well as the current review of the effects of LASPO, there needs to be a broader review into access to justice and the provision of advice and assistance,
  • more power and scope for intervention by the Equality and Human Rights Commission, subject to parliamentary scrutiny
  • better education about the legal system in general, and the way in which it protects people’s human rights, and less ‘ill-informed media criticism’
  • demonstration by the government and its ministers of respect for the rule of law and the independence of the judiciary, perhaps even a requirement to uphold judicial independence as part of the Ministerial Code.

The report cites the recent Windrush scandal as an example of administrative action taken without due regard to human rights, and stresses that enforcement in the courts should be a last resort in a system that respects rights from the ground up. As Lord Neuberger of Abbotsbury, former PSC, said in evidence to the committee, “we have pretty good rights but quite a yawning gap as far as enabling people to enforce those rights is concerned.” That is where legal aid comes in, so ‘people can get the help needed to enforce their rights before matters escalate into expensive adversarial court proceedings’.

In short, ‘no-one should lose sight of the fact that human rights, and the ability to enforce them, are amongst the hallmarks of a civilised country.’

Courts

The PACe of Reform

While the Lord Chief Justice continues to talk it up — his cheerleading speech at the Lord Mayor’s Dinner for Her Majesty’s Judges this month reiterated the panglossian enthusiasm he had voiced at the Sir Henry Brooke / BAILII lecture in June — the sceptical MPs in the Public Accounts Committee have taken a rather less sanguine view of the ability of the massive HMCTS Reform programme to deliver on its objectives, on time and on cost. The £1bn initially committed to the project now seems to have crept up to £1.2 bn, the completion period has slipped from four to six years (to 2022), yet the PAC casts doubt on the ability of HMCTS to deliver everything successfully even by then. On the whole, its Transforming Courts and Tribunals Inquiry Report(HC 976), published 20 July 2018, makes depressing reading.

While recognising the sheer ambition of the project (‘Collectively, the planned changes to the courts and tribunal system are on a scale never before attempted anywhere in the world…’), the PAC said it lacked confidence in HMCTS’ ability to deliver. Among its conclusions and recommendations were the following:

‘Despite extending its timetable from four to six years, HMCTS has already fallen behind, delivering only two-thirds of what it expected. The Common Platform Programme, a key part of the reforms, is at significant risk of not delivering. […]

Organisations representing users of the justice system told us that although the reforms presented many opportunities, they had a poor understanding of what HMCTS is aiming for and how the new system will work in practice. […] This lack of transparency means that interested parties feel that changes are being imposed rather than co-created. […]

With so much to deliver in the remaining four years of the programme, HMCTS is operating at a rapid pace. This limits the time available to stand back and consider the wider impacts of the changes on the justice system as a whole and on those that use it. […]

We are concerned that the reforms are being pursued at the possible expense of people’s access to fair justice. HMCTS has already closed 258 courts between 2010–11 and December 2017. These courts have been closed before moving services online, meaning that many people are having to travel further to access justice. This can cause many people severe difficulties, particularly for those who rely on public transport or have caring responsibilities. More closures are underway, yet HMCTS has undertaken limited work to review the impact of the closures on users or how demand for court time has been affected. […]

One third of the way through the programme, the Ministry of Justice still does not understand the financial implications of its planned changes on the wider justice system. […] Some changes, such as the increased use of video hearings, will create additional costs for other organisations such as the prison service and the police because they will have to buy the new technology needed and make staff available to supervise defendants. […] Such cost- shunting across the justice system needs to be well understood given the stress that all parts of the system are already under.

We remain concerned that the Ministry of Justice is taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures. […] It is not clear to us how the Ministry aims to flex its priorities and balance its budget whilst maintaining critical public services.’

Further reading:

Transparency Project: The Progress of Reform – or lack of it. The PAC’s Transforming Courts and Tribunals inquiry report

Gareth Corfield in The Register: You’re burning £1.2bn for what? UK spending watchdog gives digital court plans a kicking

Transform Justice, The death of local justice? How court closures marginalise rural communities

University of Suffolk, Access to Justice: Assessing the impact of the Magistrates’ Court Closures in Suffolk

CrimBarrister blog, Court Reform Crime Programme? Chinny Reckon! (Part 1) and Court Reform Crime Programme? Chinny Reckon! (Part 2)

Privacy

Cliff Richard awarded damages for BBC privacy invasion

The popular entertainer, Cliff Richard, won his claim for damages for breach of his right to privacy, under article 8 of the Human Rights Convention, as scheduled to the Human Rights Act 1998, in respect of coverage by the BBC of an investigation by South Yorkshire Police into an allegation of historic sexual abuse and a raid on Richard’s home in August 2014, and was awarded general (including aggravated) damages of £210,000, apportioned 65:35 as between the BBC and South Yorkshire Police, plus special damages to be assessed. See Richard v British Broadcasting Corpn [2018] EWHC 1837 (Ch); [2018] WLR(D) 457. (There is also an executive summary by the judge, Mann J.)

In his judgment, Mann J said that despite the fact that Richard was at the time a suspect under police investigation, he had a legitimate expectation of respect for his right to privacy which was not outweighed by the rights of the media to report the investigation (in lurid and sensational coverage) or the public to be informed of it, under article 10 of the Convention (freedom of expression). The two rights, under articles 8 and 10, had to be balanced — and in this case the balance fell on the side of privacy. (A further claim, based on the Data Protection Act 1998, added nothing and the judge did not rule on it.) The aggravating feature that added a further £20,000 to the general damages was the fact that the BBC had had the gall to nominate its scoop for a Royal Television Society award.

The judgment has sparked a good deal of commentary in the media (unsurprisingly) with many suggesting that it represents a unwelcome curtailment of freedom of the press / media, and others saying it is against open justice. One senses that the battle may only just be starting: BBC must surely be planning to appeal, and the case will no doubt get to the Supreme Court. Meanhile, other media organisations must be cursing the way the Beeb behaved, going totally over the top (in a helicopter) in its bid to grab a scoop secured via a questionable deal with the police. (All the sort of thing Leveson 2 (the discontinued second leg of the inquiry into press misbehaviour) would have looked at, had it not been cancelled by a nervous minority government.)

We have Cliff Richard’s fame and fortune to thank for the resources he must have needed to pursue such a matter: think of all those whose police investigations are reported in the press and who, like Richard, are never charged with offences that may be entirely fabricated. This was a point forcefully made by a former victim of calumnious accusation, Simon Warr, in his blog The Warr Zone: An Appeal For Anonymity (update)

Further reading:

Joshua Rozenberg, via Sky News: A win for Sir Cliff, but is media freedom the ultimate loser?

Robin Callender-Smith, on Inforrm, Cliff Richard judgment a new shift in legal balance between free speech and privacy

Cate Brown, on RightsInfo: Is Sir Cliff Richard’s Court Victory A Game Changer For The Media?

Jonathan Coad, via Inforrm: Privacy Cliff’s courageous battle with the BBC brings the right outcome

Alan Rusbridge, in the Observer: After Cliff Richard, what price privacy and the public’s right to know?

Contempt of court

Tommy Robinson appeal

For an entertaining account of the hearing of the appeal of Stephen Yaxley-Lennon (or Tommy Robinson as he likes to be known) against his committal for contempt, see Matthew Scott (or BarristerBlogger, as he likes to be known): A busman’s holiday at the Tommy Robinson Appeal

For background reading on this egregious case, see

Obiter J (as he likes to be known) on Law and Lawyers: Contempt of Court — Tommy Robinson

The Secret Barrister (as s/he likes to be known), What on earth happened to poor Tommy Robinson? 10 Things You Should Know.

Previously in the law reports: R v Yaxley-Lennon [2018] EWCA Crim 244; [2018] 4 WLR 83; [2018] WLR(D) 93

Divorce

Meal ticket: old chestnut, but no second bite of cherry

The case of Mills v Mills grinds on slowly, yet exceedingly fine. Less fine has been some of the commentary over this 15-year-old divorce case. Having now reached the UK Supreme Court, it has prompted a flurry of speculation over the uncertain future of so-called ‘meal ticket for life’ spousal maintenance orders and the likely refusal of ‘second bites at the cherry’ (the first bite of cash having been spent). But as Polly Morgan of the Transparency Project pointed out, the whole idea of the ‘meal ticket for life’ was a hoary old chestnut, and not what this case was about.

The original maintenance order was made in 2002, with both parties consent, giving the wife £1100 a month and a capital sum of £203,000 for a house. It was a ‘joint lives order’, meaning it continued to have effect until one of the parties died. In 2014 Mr Mills applied to reduce the maintenance or end it, and in response Mrs Mills, who had lost the capital sum through poor investment choices, applied to increase it. The Court of Appeal [2017] EWCA Civ 129 did increase it, to £1441 per month, and the case prompted a lot of commentary in the press about ‘meal tickets for life’ (the colloquial term for a joint lives order, it seems). The case also prompted discussion about divorce law reform, and was cited by Baroness Deech, who has launched a private members bill to impose time limits on such orders, as an example of the way the system is currently abused, in her view. For a full discussion of the commentary, see Transparency Project, Mrs Millstone…?

The Supreme Court [2018] UKSC 38 has now reversed the Court of Appeal’s decision and restored that of the judge, who had declined to vary the maintenance payments because, he said, the wife had had her accommodation needs provided for by way of the capital sum and had failed to manage it herself. The husband could be called on to increase maintenance where this was needed but very good reasons would be needed to justify such a course. Since the husband’s application to end to maintenance altogether was no longer in issue, it was nothing to do with the pros and cons of meal tickets for life. It was more about ‘double recovery’ — and the court’s discretion to grant or deny what probably does amount to a second bite at the cherry. Or as the Court of Appeal put it, the husband was not required to be ‘an insurer against all hazards’.

As for that hoary old chestnut, Lord Wilson, who gave the judgment in the Supreme Court, has this to say, at para 25:

‘Although the open-ended basis does not specify a fixed term for the life of the order, the circumstances which it identifies as bringing it to an end, in particular the potential for a further order ending it at any time, show how misleading (indeed, as the husband himself says, how unattractive) it is for some non-lawyers to describe such an order as a meal-ticket for life.’

This case will be reported fully in the Weekly Law Reports soon, but in the meantime you can read the ICLR case summary: [2018] WLR (D) 453

No fault divorce

Baroness Butler Sloss has also introduced a private members bill which (unlike Baroness Deech’s) is concerned primarily with the process of obtaining a divorce, rather than the financial remedies that follow on from that. The key element is the removal of the need to establish a factual basis for ‘irretrievable breakdown’ of a marriage or civil partnership. This is sometimes referred to as ‘no fault divorce’, or (with less justification), ‘divorce on demand’.

You can read the Divorce (etc.) Law Review Bill here (via the Parliament website). It provides for a review of the current law (contained in the Matrimonial Causes Act 1973) and consideration of its replacement with something set out in the schedule. The (purely formal) first reading took place on 18 July in the House of Lords.

Baroness Deech’s bill, referred to above, is called the Divorce (Financial Provision) Bill and has already had a debate on its second reading on 11 May 2018. As the discussion thread that follows PJM’s tweet above demonstrates, it is not universally supported among family law professionals. However, if both bills are supported and passed, it might make sense to update the original Act rather than create a lot of satellite statutes (the bane of our non-codifying approach to legislation).

That’s it for this week. Thanks for reading, and thanks for all the tweets and blogs and the 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.