Crime

Rape cases

Lord Justice Edis, Senior Presiding Judge for England & Wales, has announced a blitz on long-delayed rape trials. He said a two-year delay in scheduling 181 rape trials from 2021 was a “serious stain” on the criminal justice system and announced plans to bring almost all of these cases to trial before the end of July. The delays since 2021 were caused partly by covid and partly by the barristers’ strike, but the problem appears to be that the cases kept getting pushed back while other trials were prioritised. Prosecution and defence advocates will now be expected to give these cases priority over other commitments.

The initiative has been supported by the Criminal Bar Association, whose Monday Message today says

“We support wholeheartedly the initiative of the Senior Presiding Judge announced last week to give priority to the oldest Rape cases in the backlog. We have argued that Rape cases should be given priority — the impact of delay on these cases is particularly damaging and impacts on the attrition rate of victims. However RASSO Counsel must be resourced properly to be able to address these and all Rape cases.”

RASSO stands for Rape and Serious Sexual Offences, which require specialist junior counsel to deal with and are the subject of a five-year strategy by the Crown Prosecution Service. Results of a recent survey of CBA members suggested that significant numbers felt over-burdened with an increased workload and intended to give up RASSO work. This bodes ill for coping with the rape backlog.

Moreover these 181 old rape cases represent only a tiny proportion of the whole. In January there were 3,355 rape cases awaiting trial in England and Wales, according to The Justice Gap. Defendants on bail had an average wait time of 358 days. The current delays are some of the worst on record. Although the Ministry of Justice has resourced more court sitting days and deployed more judges, the CBA points out that “the reduced workforce of Criminal Barristers cannot operate at full throttle for long without being exhausted and further depleted”. In a subsequent tweet, the CBA provided further context for the current crisis:

See also: Joshua Rozenberg, A Lawyer Writes: Courts to tackle rape delays

Law Society Gazette: Judicial blitz on ‘stain’ of delayed alleged rape cases

Government review

Last month the government published its Rape Review progress update. This claims that prosecutions for rape are steadily increasing:

“The most recent data shows that adult rape prosecutions are higher than any other period in the last 6 years, and if maintained, will reach the highest levels seen in a decade.2 The number of adult rape cases arriving at the Crown Court is higher than at any point since 2014.”

But problems (including the delays identified above) remain. Levels of victim attrition throughout the criminal justice process are “stubbornly high, now sitting at 61% in the latest quarter of data (July to September)”.

“If we are to truly transform the investigation and prosecution of rape, we need to ensure that victims feel they can stay engaged in the process and are confident that they will be supported, listened to and believed at every stage of the investigation.”

There is a current Police experience survey for victims of rape and sexual assault which aims to gather more information on why the rate of attrition remains so high and how it might be improved. But obviously low expectations of any ultimate conviction must be a major factor.

Affirmative consent

The campaining group Right To Equality is proposing a change in law to require “active, voluntary, and mutual decision to engage in sexual activity” by way of consent, for legal purposes, rather than simply the absence of a “no.” They chose International Women’s Day last week to publicise their campaign. According to their website:

“The Law in England and Wales is currently consent-based, but it is not ‘affirmative consent’ based. We are appalled by the low conviction rates for rape, which has resulted in a society where rape has become almost decriminalised. Less than 2% of reported rapes result in a charge. We believe the law in the UK, which is 20 years old, is lagging behind other jurisdictions and in family court, there is no definition of rape or consent.”

Post Office Fujitsu scandal

POL not fit to manage compensation

The HC Business and Trade Committee said in a report published last week that it is a “disgrace” so little has been paid to former subpostmasters victimised by the Post Office and that the Post Office is not fit to manage any of the current schemes for compensating them. Its report Post Office and Horizon redress: Instruction to deliver (HC 477) concludes:

“The Post Office ruined the lives of innocent sub-postmasters. It subsequently failed to facilitate redress. Unsurprisingly, sub-postmasters have no confidence in the Post Office. The Post Office’s leadership remains in disarray; its chairman has been dismissed; and its chief executive, Nick Read, is under internal investigation. … The Post Office is not fit for purpose to administer any of the schemes of redress required to make amends for one of the biggest miscarriages of justice in British history.”

The report recommends removing the Post Office from any further involvement, and says there should be “a properly resourced independent intermediary to assist sub-postmasters seeking to overturn convictions and seek compensation across all redress schemes”. To ensure that offers of redress are fast and fair, the Government must:

  • (a) Require full disclosures by the Post Office of the information needed to submit full and fair claims within legally binding timeframes;
  • (b) publish a standardised tariff of damages to help sub-postmasters claim the full amount to which they are entitled;
  • (c) remove the cap on legal expenses for sub-postmasters to contest their claims;
  • (d) allow those who have already settled under the Horizon Shortfall Scheme to revisit their claims to ensure that they have received fair redress; and
  • (e) introduce a legally binding independent appeals mechanism.

See also: BBC, Post Office scandal: MPs warn the firm is ‘not fit’ to handle victim compensation

Richard Moorhead Thoughts on the Post Office Scandal: The case for the prosecution

Media law

Ministerial libel

The Guardian reported that Michelle Donelan MP, Secretary of State for Science, Innovation and Technology, has issued an apology and paid damages in settlement of a libel action brought by an academic, Prof Kate Sang at Heriot-Watt university in Edinburgh, whom she accused on Twitter/X of supporting Hamas. In a statement on Twitter/X she said she had deleted the tweet and a letter published last year, and accepted what she termed a “clarification” from one of the academics. See Guardian, UK science minister apologises and pays damages after academic’s libel action

What’s interesting about the story is that although the letter was an official one sent in her role as a minister, the tweet was a personal one, yet it was the government lawyers who advised on and accepted the settlement. Writing about this on his Law and Policy Blog, David Allen Green explains that it was the temptation to tweet that got the minister for science into libel trouble, accusing an academic of supporting Hamas, but the risk to the government that made its lawyers settle on her behalf.

See: A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability?

See also: Lawyer Watch: Michelle Donelan and Legal Risk

SLAPP unhappy

On Inforrm’s blog, Gideon Benaim addresses problems with the private member’s Bill on SLAPPs, introduced by backbench Labour MP, Wayne David, which has had its second reading in the House of Commons: see Strategic Litigation Against Public Participation Bill 2024”: Part 1, The Provisions and Part 2, The Problems.

Other recent items

Recent announcements and commentary of interest

Courts and Tribunals Observers Network: Anonymisation of civil judgments: a routine failure to follow open justice rules. Paul Magrath looks at why so many judgments fail to explain why they have been anonymised.

JUSTICE: Building the infrastructure for a fair, accessible justice system. Dr Natalie Byrom to identify options for a new initiative to enable policymakers and practitioners to harness data and evidence to build a fairer justice system within everyone’s reach.

Internet Newsletter for Lawyers: How ICLR is leveraging free law. Paul Magrath of ICLR explains how reusing public data from The National Archives and elsewhere is helping make law freely available for non-subscribers on its site.

Lawyer Watch: The first rule of Retired Judges Club? Graeme Johnston seeks to summarise the current position on retired UK senior judges returning to legal practice and suggests that it would be good to clarify it officially.

Law & Religion UK: Preventing lawful and decent burial. Frank Cranmer discusses recent case law and commentary on a “rather unusual offence at common law in England and Wales and in Northern Ireland”.

Local Government Lawyer: New protocol issued on disclosure of information between family and criminal agencies and jurisdictions. Among other aims and objectives, the Protocol is intended to provide a “consistent approach” to information sharing nationally in order to safeguard and promote the welfare of children and other vulnerable adults.

The new protocol is here.

Government Legal Dept: Pioneering women in law. A look back on some of the female trailblazers in the legal industry for International Women’s Day. Short piece about the achievements of Eliza Orme, Madge Easton Anderson and Rose Heilbron.

ICLR news

2024 Pupillage Award

In recognition of the difficulties faced by many talented individuals during pupillage, the ICLR currently awards an annual bursary worth £13,000 in direct financial assistance to a pupil during the course of their 12 month pupillage in Chambers.

If you are taking up pupillage at any time between October 2024 and October 2025, and being paid a total for the pupillage year (including guaranteed earnings) of no more than £37,500 (in London) or £32,500 (outside London), you could receive our top-up award of a further £13,000.

To find out more, see Application page.

Recent case summaries from ICLR

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

CONTRACT — Breach — Repudiatory breach: Ayhan Sezer Yag Ve Gida Endustrisi Ticaret Ltd Sirket v Agroinvest SA, 05 Mar 2024 [2024] EWHC 479 (Comm); [2024] WLR(D) 103, KBD

EMPLOYMENT — Time off for dependants — Parental leave: Hilton Foods Solutions Ltd v Wright, 07 Mar 2024 [2024] EAT 28; [2024] WLR(D) 106; [2024] EAT 28 , EAT

EMPLOYMENT — Protected disclosure — Unfair dismissal: Wicked Vision Ltd v Rice, 04 Mar 2024 [2024] EAT 29; [2024] WLR(D) 102, EAT

IMMIGRATION — Deportation — Foreign criminal: Johnson (Audi) v Secretary of State for the Home Department, 29 Feb 2024 [2024] EWCA Civ 182; [2024] WLR(D) 93, CA

INDUSTRIAL RELATIONS — Employment tribunals — Procedure: Hall v Transport for London, 01 Mar 2024 [2024] EAT 26; [2024] WLR(D) 99, EAT

LANDLORD AND TENANT — Right to manage — Premises: Eveline Road RTM Co Ltd v Assethold Ltd, 04 Mar 2024 [2024] EWCA Civ 187; [2024] WLR(D) 94, CA

NATIONALITY — British citizenship — Deprivation: Ullah v Secretary of State for the Home Department, 06 Mar 2024 [2024] EWCA Civ 201; [2024] WLR(D) 104, CA

PRACTICE — Service — Service out of jurisdiction: Privinvest Shipbuilding SAL (Holding) v Nyusi (Privinvest Shipbuilding SAL (Holding) v Nyusi), 29 Feb 2024 [2024] EWCA Civ 184; [2024] WLR(D) 101, CA

SOCIAL SECURITY — Universal credit — Backdating: Miah v Secretary of State for Work and Pensions (AM v Secretary of State for Work and Pensions), 01 Mar 2024 [2024] EWCA Civ 186; [2024] WLR(D) 91, CA

TRADE MARK — Infringement — Injunction: Lifestyle Equities CV and another v Amazon UK Services Ltd, 06 Mar 2024 [2024] UKSC 8; [2024] WLR(D) 105, SC(E)

Recent case comments on ICLR

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

Transparency Project: Contact arrangements where there’s a history of coercive control: FW v MJ [2024] EWFC 33 (B), Fam Ct

Local Government Lawyer: Judge rejects challenge to council declining to conduct EHC assessment: R (AOJ) v Islington London Borough Council [2024] EWHC 427 (Admin), KBD

UK Human Rights Blog: Lies, damned lies and fakery: Contax Partners Inc BVI v Kuwait Finance House [2024] EWHC 436 (Comm), KBD

Local Government Lawyer: Implementation — deviation from plans: John Southwood v Buckinghamshire Council [2024] EWHC 71 (Admin), KBD

Legal Futures: Claimant “does not know” identity of funder backing her case: Webster v Commissioners for His Majesty’s Revenue & Customs [2024] EWHC 530 (KB), KBD

Nearly Legal: Leasehold Upper Tribunal roundup: Tower Hamlets Community Housing Limited v Leaseholders of Painter House [2024] UKUT 37 (LC), UT

Spire Barristers: Case Update: Surrogacy and Step-Parent Adoption applications: Z (Surrogacy: Step-parent Adoption), Re [2024] EWFC 20, Fam Ct

Six Pump Court: The Court of Appeal has held that if the Government’s interpretation of the Paris Agreement is “tenable” the courts will not interfere: R (Friends of the Earth Ltd) v Secretary of State for International Trade [2023] EWCA Civ 14; [2023] 1 WLR 2011, CA

Tanfield Chambers: Blackhorse Investments (Borough) Limited v The London Borough of Southwark [2024] UKUT 33 (LC)

Tanfield Chambers: Savage v Savage — a recent Court of Appeal decision on TLATA: Savage v Savage [2024] EWCA Civ 49; [2024] WLR(D) 60, CA

Wilberforce Chambers: English anti-suit injunctions in aid of arbitration agreements with a foreign seat: Unicredit Bank GmbH v Ruschemalliance LLC [2024] EWCA Civ 64, CA

And finally…

Tweet of the week

Is a plug from me (sorry)

That’s it for now. Thanks for reading, and thanks for all your toots, tweets, posts and links. Work hard, be kind, take care.

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: Crown Court at Lincoln (Shutterstock)