ICLR news

ICLR.4, the latest iteration of ICLR Online, has gone live. As well as including a suite of upgrades to its standard functions — including browse by subject matter, more extensive case information and commentary, and a much better display of legislation — the new version also features the revolutionary new AI-driven case research function, Case Genie.

For more information see our recent blog post, Welcome to ICLR.4 … Find out what’s new or go to the Case Genie information page.

This follows extensive development work, with feedback from practitioners, based on earlier research by our lab, ICLR&D. Its leading project Blackstone, a spaCy model and library for processing long-form unstructured legal text, provided the initial vision and proof of concept for Case Genie. We then developed it with the assistance of those brilliant minds at 67 Bricks.

The lab’s been a bit dormant while we concentrated on development, but we’re keen to get back to some of the other projects, such as Friction, which addresses the question of open access to case law (think of judgment transcripts), and Raconteur, which looks at making the law more accessible (an aspect of transparency).

International Human Rights

The fundraising appeal on behalf of The Arrested Lawyers Initiative led by Dame Helena Kennedy needs more funds to help Afghan women judges, lawyers and activists to escape from Afghanistan, where many remain in hiding for fear of their fate and that of their families at the hands of the Taliban. They have already raised £120,492 but you can help them reach their £200,000 goal by donating via their GoFundMe page.

In her latest update, Kennedy says:

“Between 30 September and 24 October, we managed to evacuate 103 women at risk, and their families, close to 500 people in total, to Greece. Among the women at risk are high profile female judges, lawyers, prosecutors, journalists, and other human rights defenders, who faced severe threats in Afghanistan because of their work.

Many of them have a final destination and we assist with their onward travel. Women at risk without final destination have a temporary visa in Greece and we continue working on securing a final destination for them. We continue supporting them throughout the process.

We hope to continue this work and have further evacuation efforts.”

They are not the only ones trying to help. In a recent edition of BBC Law in Action, Joshua Rozenberg discussed the plight, and flight, of Judges in Jeopardy. He interviews two Afghan judges and two judges who are trying to help them.

See also the testimony of one of just six female judges who have so far managed to reach Britain speaks of fleeing Kabul and finding refuge in Manchester, in The Guardian: ‘The most difficult journey of my life’: an Afghan family’s escape to the UK

The Refugee Council is also helping refugees generally from Afghanistan, among other places. They have already raised £378,613 of their target of £500,000. See their current Refugee crisis appeal

Family law

Last week the President of the Family Division, Sir Andrew McFarlane finally released his long-awaited transparency report, entitled Confidence and Confidentiality: Transparency in the Family Courts. The title refers to the tension between two opposing dynamics, of greater openness on the one hand, permitting the public scrutiny necessary to maintain confidence in the system, and “maintaining a cloak of confidentiality around the identity and personal information of the children and adult parties whose cases come before the court”.

“Whilst other less prominent factors are, of course, in play, these two opposing dynamics are key. The task of ‘squaring the circle’ between the competing needs for confidence and confidentiality has, rightly, proved to be a most difficult one over the years. Trying to identify ways in which confidence can be significantly enhanced, whilst still maintaining confidentiality, has therefore been my primary aim in this exercise.”

The report has been analysed by the Transparency Project, who are named in it for their “excellent work” in demonstrating the many different ways of improving openness and public awareness: Seeing invisible elephants — the transparency review is published.

There were also concerns about the additional burden that publishing more judgments would impose on the judiciary:

See also:

Crime

In a case that may fairly be said to have shocked the nation, Penelope Jackson was convicted at Bristol Crown Court of the murder of her husband, David, whom she stabbed three times at their home in Somerset before telling a 999 operator: “I thought I’d get his heart but he hasn’t got one.”

The case was widely reported, including on television, where footage shown included her arrest, with audio from the 999 call, during which she made no attempt not to incriminate herself, rather the opposite. The jury of of eight women and four men returned a 10–2 majority verdict of murder, rejecting her plea of manslaughter. Imposing a life sentence with an 18-year minimum term, the judge Martin Picton said:

“I have no doubt you intended to kill your husband and it was a premeditated murder. Your behaviour shows a shocking level of callousness. During the four days of giving evidence I did not detect a shred of genuine remorse on your part for the crime you have committed.”

Nevertheless, the case attracted comparison with others in which the homicide took place in the context of alleged long-term domestic abuse or coercive control. The Guardian reported that, at her trial, defence counsel sought to persuade the jury that Penelope Jackson had a “loss of control” after being pushed to the edge by long-term intermittent abuse.

The case drew adverse comment from the Centre for Women’s Justice, who, admittedly before the sentencing remarks had been published, said:

“This is a classic case of a slow build-up of fear and anger arising from the controlling behaviour, which became more unbearable when she was trapped in her home with her abuser during lockdown.”

The CWJ noted: “It is understood Penelope Jackson’s defence team will be appealing the conviction.” (This, of course, means nothing. Anyone can appeal, unless and until refused permission to do so. Why wouldn’t you, if you’ve nothing more to lose? Even that far more egregious murderer Wayne Couzens is, on this basis, if on no other, appealing.)

The case of A Local Authority v C [2021] EWCOP 25; [2021] WLR(D) 289 caused some controversy at first instance, when Mr Justice Hayden ruled that it would not necessarily be unlawful under section 39 of the Sexual Offences Act 2003 for a care worker to facilitate the visit to a sex worker of a person who was capable of consenting to sexual relation but lacked capacity to make the necessary arrangements. In his view “Section 39 is structured to protect vulnerable adults from others, not from themselves. It is concerned to reduce the risk of sexual exploitation, not to repress autonomous sexual expression.” [paras 89, 93]. Therefore, a care worker who has arranged a sex worker should not be subject to criminal sanctions as they had facilitated an exercise of personal autonomy.

Comments on the case at the time generally focused less on the needs of C and more on the ethical ramifications both for the care worker and in terms of the perceived legitimation of sex work (see Commentary listed on the Case Info linked to the case name on ICLR.4).

Now the Court of Appeal (reported as Secretary of State for Justice v A Local Authority (Institute of Registered Case Managers intervening) [2021] EWCA Civ 1527; [2021] WLR(D) 540) has reversed that decision, holding first that since the judge had not been asked to make a best interests decision, but simply to express a view on the application of section 39 to a hypothetical set of facts, it was doubtful whether he should even have entertained the matter. Secondly, as to section 39 of the 2003 Act, the court took the view that it sought to protect a large number of vulnerable people and, to the extent that it discriminated against people in C’s position, it represented the considered view of Parliament striking a balance in a difficult area. Parliament had restricted the freedom of some individuals in the wider interest of protecting vulnerable people as a group. Therefore the arrangements for securing the services of a sex worker envisaged in the present case would place the care workers in peril of committing an offence contrary to section 39.

According to The Times, “Salem’s last guilty witch Elizabeth Johnson Jr [is] to be exonerated”. It appears that a campaign by schoolchildren prompted a local politician to file a bill to clear Johnson’s name, and it was announced to coincide with Halloween because, er, “It’s the time of year to get this done,” said Massachusetts state senator Diana DiZoglio. (Or as the New York Post put it, “Must be the season of the witch.”)

Johnson was convicted of “covenanting with the devil” in January 1693, but her death sentence was stayed. However, unlike her mother, also convicted, she was never formally exonerated. DiZoglio told the New York Post: “We will never be able to change what happened to these victims but at least we can set the record straight.”

Editor’s note. No spell check was used in the casting of this story.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.3:

ARBITRATION — Award — Enforcement: Selevision Saudi Co v beIN Media Group LLC, 22 Oct 2021 [2021] EWHC 2802 (Comm); [2021] WLR(D) 541, QBD

DATA PROTECTION — Personal data — Access to: R (Open Rights Group) v Secretary of State for the Home Department (Liberty intervening), [2021] EWCA Civ 1573; [2021] WLR(D) 548, CA

DESIGN — Unregistered Community design — Validity: Ferrari SpA v Mansory Design Holding GmbH, 28 Oct 2021 (Case C-123/20); EU:C:2021:889; [2021] WLR(D) 545, ECJ

EMPLOYMENT — Working time provisions — Working time: BX v Unitatea Administrativ Teritorială D, 28 Oct 2021 (Case C-909/19); EU:C:2021:893; [2021] WLR(D) 544, ECJ

EUROPEAN UNION — Environment — Natural habitats: IE v Magistrat der Stadt Wien, 28 Oct 2021 (Case C-357/20); EU:C:2021:881; [2021] WLR(D) 546, ECJ

EVIDENCE — Foreign law — Presumption of similarity: Brownlie v FS Cairo (Nile Plaza) LLC, 20 Oct 2021 [2021] UKSC 45; [2021] 3 WLR 1011, SC(E)

EXTRADITION — appeal — Bar to extradition: Barber v Administrator of the Sovereign Base Areas of Akrotiri and Dhekelia British Overseas Territory, 26 Oct 2021 [2021] EWHC 2858 (Admin); [2021] WLR(D) 542, QBD

HUMAN RIGHTS — Freedom of expression — Interference with: R (Autonomous Non-Profit Organisation TV-Novosti) v Office of Communications, 26 Oct 2021 [2021] EWCA Civ 1534; [2021] WLR(D) 543, CA

WILL — Construction — Intention of testator: Partington v Rossiter, 29 Oct 2021 [2021] EWCA Civ 1564; [2021] WLR(D) 547, CA

Other recent publications

Prof Richard Moorhead on the latest submissions (Working Paper 4) of the Evidence Based Justice Lab at Exeter University Law School, regarding the current Horizon Inquiry into the mass Post Office Trial miscarriages of justice. In essence, these submissions argue that an understanding of the Second Sight Investigation; the role of legal advice on shortfall cases, civil and criminal; and the conduct of the Bates litigation are fundamental to an exploration and understanding of the harms arising from POL’s use of the Horizon system. You can read the full submissions here.

Dr Eoin O’Dell, via his blog: Cearta.ie — the Irish for rights, discusses one of the major themes emerging in papers at the third annual conference of the Irish Supreme Court Review which will take place online next Saturday, 6 November 2021, hosted by the School of Law, Trinity College Dublin and supported by Pinsent Masons.

Stephen Kinsella, via Inforrm’s blog, discusses renewed calls to ban anonymous online social media accounts following the murder of MP David Amess and in light of the threats and abuse that those in public life face, particularly online.

The quarterly online update to the Court of Protection Handbook is now available, covering key practice and procedure updates to the text of the main volume. Author Alex Ruck Keene notes on the blog that

“We are also working on publishing the update in hard copy as a one-off inter-edition bonus — work on the next edition cannot properly start until we have more detail about the revisions to the MCA Code of Practice and what is happening with the Liberty Protection Safeguards.”

Charmian Jackson and Malvika Jaganmohan, family barristers at St Ives Chambers in Birmingham, share their experiences of feeling like they’re barristers who just don’t work hard enough, via the Stiff Upper Lip blog.

The short answer is, no. But it has recognised proceedings in a foreign court to which one of the parties appears to be some hippos. David Allen Green explains the whole thing on his Law and Policy Blog.

“What the American court has decided, it seems, is not so much that an animal is a legal person but that the fact a party to foreign litigation happens to be an animal is not a bar to being an “interested person” under one statutory provision.

This does not mean the hippopotamuses are now legal persons for all purposes should they somehow manage to come to America.

Nor does it mean that the hippopotamuses have had any substantive rights (or perhaps even any procedural rights) recognised by the court.”

And finally…

Is from John Hyde of the Law Society Gazette, on the opening of a judgment that bluntly sets the scene for the ensuing dispute.

The judgment is here: Thomas v The Education Workforce Council [2021] EWHC 2774 (Admin).

It’s also of interest for including (though not the first to do so) an emoji. (The first appears to be a case of Peter Jackson J which was written up here: Giving a clear and simple judgment: how hard can it be?)

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.

Featured image: photo by Patrick Tomasso via Unsplash.