Inquests and inquiries

Hillsborough Charter

Official responses to the Hillsborough disaster in 1989, in which 97 football fans are now known to have lost their lives, have always been in essence “too little, too late”. The original inquests, completed in 1991, concluded with verdicts of “accidental death” in respect of all the deceased. South Yorkshire Police and some media reports initially blamed Liverpool fans for the disaster, but the a report chaired by Lord Justice Taylor in 1990 found the cause was poor crowd control by the police and made a number of recommendations about stadium management. Meanwhile the bereaved families and others continued to campaign for justice.

On an application by the Attorney-General, in December 2012 the High Court quashed the verdicts in the original inquests and ordered fresh inquests to be held. In 2016 these concluded, after hearings lasting two years, that the 96 deceased had been unlawfully killed. (Since then another victim has been identified as such, so the total is now 97.) Under the direction of the coroner, Sir John Goldring, the jury of six women and three men answered 14 questions relating to the causes of the tragedy and found a catalogue of failings by police and the ambulance services contributed to the deaths. They rejected the previously accepted explanation that drunken fans who surged into the stadium through a gateway had caused the crush that led to the deaths, and dispelled a number of other assertions about the conduct of fans on the day.

Following the reversal of the original inquest findings, the government commissioned the then Bishop of Liverpool, the Right Reverend James Jones, “to produce a report on the experiences of the Hillsborough families so that their ‘perspective is not lost’.” This he did in 2017, calling it pointedly ‘The patronising disposition of unaccountable power’ A report to ensure the pain and suffering of the Hillsborough families is not repeated (HC 511). This report made 25 recommendations for future inquests involving public bodies, including equal funding given to bereaved families compared to the state and the introduction of a duty of candour for all public officials.

The government has now published its official response: A Hillsborough Legacy: the Government’s response to Bishop James Jones’ report to ensure the pain and suffering of the Hillsborough families is never repeated

In presenting this response to Parliament the Lord Chancellor, Alex Chalk KC MP admitted

“the government’s response to Bishop James’ report has been a long time coming. For some of that time, it was necessarily held back to avoid prejudicing the outcomes of criminal trials, but there has been delay since and I recognise that this has only compounded the pain of the Hillsborough families and survivors. And the government apologies for that.”

Regarding the Hillsborough Law, Chalk said:

“I can tell the House that the Deputy Prime Minister has today signed what will be known as the Hillsborough Charter, on behalf of the government. Other signatories of the charter include the National Police Chief’s Council on behalf of all 43 police forces, the College of Policing, the Crown Prosecution Service, National Fire Chiefs’ Council and others.

We want this charter to become part of the culture of what it means to be a public servant in Britain. So the Deputy Prime Minister will be writing to all departments, to ensure that everyone who works in government is aware of the Hillsborough Charter and what it means for the way they work. A reference to the charter will also be added to the central induction to the Civil Service for all new joiners.”

It commits signatories, the leaders of public bodies, to strive to:

  • place the public interest above the reputation of their own organisations
  • approach all forms of public scrutiny — including public inquiries and inquests — with candour in an open, honest and transparent way
  • avoid seeking to defend the indefensible

He also announced an extension of the exceptional cases funding scheme to ensure legal aid would be more available to victims families in the event of future disasters, and that there would be a “clear expectation that central government public bodies must instruct their lawyers in accordance with the principles of the Hillsborough Charter”.

But this response appears to fall short of what campaigners had wanted from the Hillsborough Law. The proposed law, drafted by Pete Weatherby KC, who represented 22 families at the 2014–2016 inquests, would have introduced a legally enforceable duty of candour, requiring police and public authorities to openly and fully assist inquiries and court proceedings after a major incident. Weatherby described the government’s tardy response as “completely cynical and inadequate”.

Further reading:

UPDATE: Judge Thomas Teague KC, Chief Coroner of England and Wales: Response to the Right Reverend James Jones KBE – Report on the Experiences of the Hillsborough Families

Immigration

Rwanda Bill

Described by one commentator as a “triumph of hope over experience”, the government’s Safety of Rwanda (Asylum and Immigration) Bill promises to bypass the inconvenient findings of fact by the UK Supreme Court, following a new and more compliant treaty with Rwanda, and to declare in a sovereign and legally enforceable way that, yes, Rwanda is a “safe” country. No ifs, no buts.

It’s a bit like a frustrated parent telling a querulous child, “Why? Because I say so!”

The Bill provides by section 2(1) that “Every decision-maker” — which by subsection (2) includes any UK court or tribunal when considering a decision of the Secretary of State or an immigration officer — “must conclusively treat the Republic of Rwanda as a safe country.”

By section 3(1): “The provisions of this Act apply notwithstanding the relevant provisions of the Human Rights Act 1998, which are disapplied as follows.” It goes on to explain which provisions are affected and when.

Section 4 then allows for decisions based on individual circumstances, as to whether Rwanda would be a safe country for that person, but subject to stringent restrictions and without any such decision affecting the general ruling that Rwanda is in general a safe country.

Section 5 addresses the situation where the European Court of Human Rights in Strasbourg indicates an interim measure in proceedings relating to the intended removal of a person to the Republic of Rwanda, and says it is for a government minister and not any UK court to decide whether to comply.

This is, of course, a very superficial run-down of what the Bill contains. For more detail, and for criticism of its constitutional validity, etc, see:

One government minister has already resigned over the Bill — Robert Jenrick MP, the [former] immigration minister, apparently because it doesn’t go far enough; and another, the Attorney General, Victoria Prentis KC MP, has declined to put her name to it, reportedly because it goes too far. Some clue as to that emerges from the first page of the Bill, where the Home Secretary James Cleverley MP has declared:

“I am unable to make a statement that, in my view, the provisions of the Safety of Rwanda (Asylum and Immigration) Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill.”

If the cabinet cannot agree on a measure of this electoral significance (albeit a significance largely self-generated) then it seems unlikely the public will unite behind it, whether or not it can survive the inevitable legal and political challenges. Even the Civil Service appears to have given up on it: see The Guardian, The Rwanda plan is failing — so watch as our cowardly government blames the civil service

As for Jenrick, now that he’s gone his reputation as a hardline immigration minister will rest mainly on his Grinch-like order requiring officials to remove murals created to soothe asylum-seeking children in a reception centre at Tug Haven, in Dover, Kent, earlier this year, prompting a collection of cartoonists to offer replacement artwork. (See The Art Newspaper, UK minister orders mural be destroyed at asylum centre — artists rally to replace it.)

Update: see also David Allen Green, The Empty City: Time and the Rwanda policy

Civil justice

Online Procedure

Lord Justice Colin Birss: Is a focus on data the way to improve access to justice in a multifaceted world?

Giving the 24th Competition Law Association Burrell Lecture, Birss LJ said the Online Procedure Rules Committee (OPRC) “provides an opportunity to look at our system in a new way” and that “a focus on data may provide a new approach to improving access to justice”.

He began with the nuts and bolts of, literally, nuts and bolts. The invention of the screw-thread and the benefits of its standardisation to mechanical engineering. He then jumps forward to the inter-network network or “internet” as we know it, with its origins in the seventies, and the protocols that enabled it to work across the globe. “Here is where an important legal innovation comes into play. And it is about connections.” Because, just like screwthread standards and network protocols, “for the first time a rule committee has the express authority to make provision for and to set digital standards in relation to the pre-action space.”

It’s a “one-ring-to-rule-them-all” moment.

“But the key aspect in fact is that the systems for Civil, for Family and for Tribunals are all actually built on the same platform. It is one database. The various bespoke systems I have mentioned all look different from the outside, because they are intended to be well designed for the particular case type, but they are in fact just different “front ends”, the top of the stack, the outwards facing part, built up from the same underlying platform.”

All we have to do is “focus on the nuts and bolts, that is the data flowing between the actors in the justice system”.

We have heard other judges sing the praises of the all-connected all-singing all-dancing all-online digital justice system, but Colin Birss is, if we may say so, by far the most eloquent and convincing explainer so far. He may be streets* ahead of the capacity of HMCTS to actually deliver on the vision, but the vision is undoubtedly there.

[ *But then the designer of the RCJ was, er, George Edmund Streets ahead of the … all right I’ll stop right there. ]

Designated Civil Judge Online appointment

Interestingly, in the context of the above, this week saw the appointment of the first Designated Civil Judge Online. Hitherto, all Designated Civil Judges have been assigned to a particular circuit, eg London, Midland, North East, etc. But now, thanks in part to the creation of the Online Court and the OPRC, His Honour Judge Ivan Ranson has been appointed as the first Designated Civil Judge Online, with effect from 5 December 2023.

As the announcement explains

“This newly created role will provide further civil judicial leadership capacity, particularly to national services and the digital system, as part of a plan to increase the overall proportion of civil leadership posts across England & Wales.”

Crypto claims

HHJ Pelling KC: Issues in Crypto Currency Claims

Speaking at the DIFC Seminar on 13 November 2023, Judge Pelling KC discussed “current trends and issues in the crypto field in England and Wales”. But if you expected another thrilling glimpse into the Futurescope, you may be disappointed:

“Although the primary focus initially of those interested in this area was on smart contracts and block chain payment as a new means of doing business, particularly across borders, that has not been what has occupied the courts in England so far. Almost exclusively, the claims that have come before the courts have been fraud cases.”

Oh dear. And the main difference is not the space age techno wizardry of the financial instruments themselves, but the procedural problems of dealing with shadowy offshore entities, serving proceedings on persons unknown, identifying untraceable assets and so on, although there are references to exciting innovations such as “hot wallets” and “cross chained” assets. The Law Commission has recently attempted to propose how legislation might deal with crypto assets, but in the meantime Pelling thinks it will be up to the common law to mould itself towards a solution:

“The English courts will I think continue to develop common law principles in order to cope with the challenges posed by a largely unregulated economic sector. … Merely national regulation I suspect will not provide an answer.”

Family law

More QLRs needed

The Qualfied Legal Representative scheme established for the purpose of sections 65 and 66 of the Domestic Abuse Act 2021 has not been an unqualified success. While it may be the case, as the government boasts, that “hundreds of lawyers signed up to be Qualified Legal Representatives after the landmark Domestic Abuse Act banned abusers from interrogating their victims in family and civil courts”, they have not been particularly active. One reason is that it’s not well enough paid.

It may be partly to address this, but in a roundabout way, that the government is now offering to pay travel and other expenses.

QLRs are needed to ensure that alleged victims of domestic abuse are not cross-examined by their own abusers. While legal aid is available to victims, it isn’t necessarily available to alleged perpetrators, who may therefore be representing themselves in family court proceedings involving finance or child arrangements. Cross-examination is, instead, carried out by these court-appointed legal professionals, to ensure that justice is done fairly for both sides and reduce the risk of victims being retraumatised.

To encourage more lawyers to join, the government says they will now be able to claim for travel to hearings up and down the country. Previously no expenses were available but lawyers will now be able to claim up to £180 for their travel and up to £161 per day for other expenses, including hotel stays and food.

Ultimately, as with the privatisation of court interpreting services, an attempt by the austerity coalition to save public funds by cutting legal aid funding has simply ended up costing the public more in other ways.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

CHILDREN — Custody rights — Breach: In re T (Abduction: Protective Measures: Agreement to Return), 01 Dec 2023 [2023] EWCA Civ 1415; [2023] WLR(D) 512, CA

CHILDREN — Evidence — Father applying for return of children to Mauritius: C v M (A Child), 01 Dec 2023 [2023] EWCA Civ 1449; [2023] WLR(D) 507, CA

COMPETITION — Competition Appeal Tribunal — Market investigations: Competition and Markets Authority v Apple Inc, 30 Nov 2023 [2023] EWCA Civ 1445; [2023] WLR(D) 509, CA

CONTEMPT OF COURT — Committal application — Breach of court order: Moss v Kingston upon Thames Royal London Borough Council, 30 Nov 2023 [2023] EWCA Civ 1438; [2023] WLR(D) 510, CA

REVENUE — Search, right of — Retention of seized property: Newcastle United Football Co Ltd v Revenue and Customs Comrs, 29 Nov 2023 [2023] EWHC 3021 (Admin); [2023] WLR(D) 501, DC

REVENUE — Value added tax — Refund: British Telecommunications plc v Revenue and Customs Comrs, 04 Dec 2023 [2023] EWCA Civ 1412; [2023] WLR(D) 506, CA

TRADEMARK — Registration — Acquiesence: Industrial Cleaning Equipment (Southampton) Ltd v Intelligent Cleaning Equipment Holdings Co Ltd, 06 Dec 2023 [2023] EWCA Civ 1451; [2023] WLR(D) 511, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

Free Movement: Court of Appeal confirms limited ability to bring Cart judicial review claims: R (LA (Albania) v Secretary of State for the Home Department [2023] EWCA Civ 1337, CA

Free Movement: Court of Appeal tells Home Office to reconsider “plainly wrong” decision on Turkish business person application: R (Ozmen) v Secretary of State for the Home Department [2023] EWCA Civ 1366, CA

Free Movement: Damages claim for asylum delay dismissed by Court of Appeal: FXJ v Secretary of State for the Home Department [2023] EWCA Civ 1357; [2023] WLR(D) 477, CA

Out-Law: Supreme Court puts conditions on injunctions against travellers: Barking and Dagenham London Borough Council v Persons Unknown [2023] UKSC 47, SC(E)

Legal Futures: Court of Appeal: Judges can order parties to engage in ADR: Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416; [2023] WLR(D) 498, CA

Local Government Lawyer: Refusal of tribunal to adjourn for aftercare evidence was “kicking the can down the road”, Upper Tribunal finds: SS v Cornwall Partnership NHS Foundation Trust (Mental Health) [2023] UKUT 258 (AAC), UT

And finally…

Tweet of the week

is from Legal Hackette, with festive photos of holiday celebrations

That’s it for now. Thanks for all your tweets and toots and threads. May your blue sky remain unclouded.

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.