This week’s roundup of legal news and comment includes online convictions, Brexit confusion, legal reporting and women in law.  But first, here’s a picture of the MOJ.

Windows onto justice: the MOJ headquarters (photo via Google Streetview)

Courts

Online prosecutions and HMCTS Reform

The HM Courts & Tribunals Service and Ministry of Justice announced last week that using a system developed in partnership with Transport for London (TfL) more than 3,000 tube and bus fare dodgers have been sentenced through a revolutionary new digital sentencing system.

The new paperless process, in operation at Lavender Hill Magistrates’ Court, means TfL no longer have to manually process and physically deliver case papers to the court. Instead, prosecution evidence is now electronically transferred directly to the court. These cases are then considered by a magistrate and legal advisor on a laptop – freeing up court time to focus on more serious crimes. In this way TFL can prosecute some 18,000 commuter crimes a year in the capital more quickly and efficiently.

Interesting fact: according to a Note to editors:

Evidence shows offering people the chance to plead online in these kinds of cases actually means more respond than when we ask for pleas on paper. The process will mostly replace letters (that don’t work very well), and court hearings where the person doesn’t turn up, not physical court appearances.

This echoes what we were told when we attended the HMCTS Public Community Change Event at the MOJ on 2 November, as reported on this blog: The Court of the Future: HMCTS Change Event at MOJ

Concerns about online criminal justice have been raised on numerous occasions including a recent post, by Penelope Gibbs of Transform Justice, who highlights the risk of injustice where defendants, particularly young or otherwise vulnerable ones, are not represented: Click here to plead guilty – the latest on online courts

See also Natalie Byrom’s Storify of the lecture (full text as yet unpublished) given by Professor Dame Hazel Genn last month at Grays Inn, analysing the HMCTS Reform programme.

 

Brexit

Hard exit v revocability

In the space of a week Theresa May had to sack, or resign, two of her cabinet ministers: first to go was Michael Fallon, Secretary of State for Defence, by reason of alleged sexual harassment; then Priti Patel, Secretary of State for Overseas Development, for failing to declare and disclose meetings with politicians and officials in Israel, whilst supposedly on holiday. (The replacement of the latter by Penny Mordaunt allowed wits to observe that the whole business had cost May “a Priti / Penny…”)

But it was also the week in which, in relation to Brexit, her government proposed to legislate for a hard exit date, essentially enshrining the possibility of a no-deal exit into the statute book by way of an amendment to the European Union (Withdrawal) Bill. (It’s not clear how that might work with a transition period, though presumably it rules out its taking the form of any extension of the article 50 notice period. So the transition would be part of whatever deal was done and therefore dependent on there being a deal.)

Meanwhile Lord Kerr, who drafted article 50 of the Treaty, under which notification of an intention to leave the EU was given, said he had intended it to be reversible; but the view was not shared by legal commentators who pointed out that

(a) the Commission has said notification under art 50 cannot be unilaterally withdrawn, but would require the consent of all the other 27 member states;

(b) the point was not decided by the UK Supreme Court in the Miller case (R (Miller) v Secretary of State for Exiting the European Union  [2017] UKSC 5; [2017] 2 WLR 583), which was concerned with the need for parliament to vote for the sending of notice under art 50, and both sides decided not to put the matter of revocability in issue in that case;

(c) the meaning of a provision like article 50 would ultimately need to be determined by the European Court of Justice. As with contracts, deeds and legislation, it is the court and not the maker of the document that determines its objective meaning and effect, though there are rules about what sort of evidence can be adduced in deciding. (Broadly speaking, the drafter may know what they meant, but the court decides what they actually said.)

In response, the UK Department for Exiting the EU said: “We have always been clear that Article 50 will not be revoked.” According to the Financial Times:

The department has set “exit day” as 11pm London time on 29 March 2019, meaning that Britain would not request an extension to the two-year negotiating period established by Article 50. The date will be included in the EU withdrawal bill, which returns to the Commons for scrutiny by MPs on Tuesday.

See also:

David Allen Green, also in the FT, who discusses the issue of revocability in, How the UK can buy more time for Brexit

Obiter J on Law and Lawyers, Setting Brexit Day in stone? An unwise move

Brexit Time: Exit Day! What Does it Mean for a ‘Transitional’ Deal?

BBC News: EU preparing for possible collapse of Brexit talks – Barnier

 

Legal Professions

Women in law

This year’s First 100 Years Spark 21 Conference celebrating women leaders in law took place at Simmons & Simmons LLP in London on 8 November. Lord Neuberger was the keynote speaker, with a series of panel debates chaired by broadcaster Dame Jenni Murray OBE.

Among the highlights of the day was an interview with pioneering barrister and law centre founder Nemone Lethbridge, now 85, who spoke to Katie Gollop QC about her life and the challenges she faced. We hope to publish an account of this soon.

For a more general account of the day, see Female Millennial blog, Spark 21 Conference: Inspiring and Horizon Widening

The same week saw the launch of Women in Criminal Law, with a website and a Twitter account that has already gathered lots of followers. Their patron is Lady Justice Heather Hallett and their mission statement includes the following:

Women in Criminal Law exists to promote women working in the criminal justice system.

We will provide information, encouragement and support to women in criminal law, helping them to develop their connections to progress within their own field of practice, chambers, firm or organisation. Our aim is to break down barriers to success by providing appropriate support to women. This will include advice and skills training, enabling women to prepare for senior roles in the CJS

There is also a handy infographic from Legalo that highlights the Law Society’s recent report on the continued rise of women in the law.

Pro Bono Week

No – this is not about a cab ranking counsel to defend the lead singer of U2 over allegations of off-shoring his loot following the Paradise Papers revelations. It’s about the annual festival of voluntary legal service which is a serious business, all the more so in view of the still desperate lack of properly funded legal aid.

There is a handy Guide to Pro Bono (PDF) from the National Pro Bono Centre. The purpose of Pro Bono Week is, it explains:

National Pro Bono Week is an annual week to recognise the contribution lawyers make, free-of-charge, to many people and organisations in need of legal advice who otherwise would not be able to afford it.  It is currently in it sixteenth year.

Some of the key activities of the week,  sponsored by the Chartered Institute of Legal Executives, The Law Society and the Bar Council, were listed on the Law Society’s website and included events in Bristol, Liverpool, Birmingham and Manchester as well as London.

President of the Law Society Joe Egan said:

“I am so proud of the extent of the pro bono legal advice offered by lawyers every year. This advice gives not only life-changing practical help, but can also relieve mental and physical distress. In 2017 the public service ethos of so many of our profession has been particularly evident as they have stepped in to volunteer their services to victims of terror attacks and the  devastating fire in Grenfell Tower.”

Legal reporting

Bar Council awards

Times journalist Melanie Phillips and the BBC’s Zoe Conway have won the Bar Council Legal Reporting Awards 2017, it was announced on 7 November.

Melanie Phillips won the Print & Online category for her piece on Charlie Gard and the American right, while Zoe Conway won the Broadcast category for her programme on the limbo experienced by prisoners subject to Imprisonment for Public Protection (IPP) sentences. Chair of the Bar Andrew Langdon QC presented the awards at the 32nd Annual Bar and Young Bar Conference in London on Saturday 4 November.

Practitioners were quick to congratulate the winners, including Katie Gollop QC who was involved in one of the cases reported on:

The Bar Council has also just published a handy list of media coverage for last week’s Bar Conference.

Keep Calm Talk Law

The legal blogging website marks two anniversaries this week, as Editor in Chief Keir Baker reports:

Today marks two anniversaries for Keep Calm Talk Law: four years ago, it published its first article, Thomas Horton’s fascinating analysis of the Supreme Court’s decision in R (Chester) v Secretary of State for Justice [2013], while this time last year, I was officially promoted to my current position of Editor in Chief.

The site has enjoyed a resurgence under Keir’s editorship:

Now, I am proud to say that Keep Calm Talk Law is very much back to where it belongs: one of the most popular legal websites for those setting out on their journey with the law. 56,000 individuals have visited the site in the last twelve months, and the Journal now boasts twenty team members, whose enthusiasm and talent for both writing and editing is something for which I will be eternally grateful.

Recent reads

Here are some interesting recent blog posts and articles:

Secret Barrister in the i news, Crowdfunding a rape prosecution: a quick guide to private prosecutions

Transparency Project reporting watch team, Why did Gloucestershire seek anonymity?

Matthew Scott on BarristerBlogger, The legalised lynching of Lillith the lynx

 

Legal Training

BPTC: Cross examination tips

ICLR’s Daniel Hoadley provides his Cross-examination Pro Tips in a guest post on Snig’s Classroom blog

Inns of Court

ICLR’s Paul Magrath’s discussion of dining in hall as an integral part of the preparation by the Inns of Court for life at the bar was published in Lawyer 2B magazine last week.

 

Law (and injustice) from abroad

America

Federal career judiciary?

One of the latest presidential nominations to become a federal judge is a man barely out of law school who has hardly any courtroom experience. Brett J. Talley, President Trump’s nominee to be a federal judge in Alabama, has practiced law for only three years and has never tried a case. Unsurprisingly, the 36-year-old right-wing blogger, who has pledged support for the National Rifle Association, was unanimously rated “not qualified” by the American Bar Association’s judicial rating committee.

Last Thursday the Senate Judiciary Committee, on a party-line vote, approved Talley, who graduated from Harvard Law School in 2007 and is a deputy assistant attorney general at the Justice Department, for a lifetime appointment to the federal bench.

But perhaps there’s another way of looking at this. Do judges need to be experienced before appointment? Not if you have a career judiciary, in the civil law sense, since by definition judges come to it fresh, rather than as a second career after a decade or two of courtroom advocacy and/or other relevant experience, as happens in most common law jurisdictions. So is America moving towards a career judiciary at federal bench level?

It seems improbable, to say the least. You might imagine it happening at a junior level within a state jurisdiction. But not in a federal court which adjudicates on laws that govern the entire nation.

Incidentally, another definition of “career judiciary” is one that is not politically appointed, as  discussed in an article from 1988 in the Los Angeles Times, Justice Requires a Career Judiciary : Demonstrated Ability, Not Political Agenda, Should Be Guide, which begins with the sardonic (yet in this case apposite) observation that “A judge has been defined as ‘a lawyer who knew a governor.’ ”

See also:

LA Times: Trump judge nominee, 36, who has never tried a case, wins approval of Senate panel

New York Times, Trump Nominee for Federal Judgeship Has Never Tried a Case

Poland

Nationalism on the rise

The Wall Street Journal reported an independence day procession in Warsaw in which tens of thousands of youths marched with banners in favour of ethnic purity and chanting for their “fatherland”.  Not all of them were Polish. Some had come from Hungary, Slovakia and even Spain, with flags and symbols supporting nationalism and symbols reminiscent of Nazism. The banners read “White Europe,” “Europe Will Be White” and “Clean Blood.” The march was organized partly by a group called the National Radical Camp and partly by All Polish Youth: both groups inherit names or ideas of fascist and anti-semitic movements dating back to the 1930s and 40s. Non-extremists on the same march seemed, when interviewed by the WSJ, to be somewhat complacent about the extremists in their midst.

“There are of course nationalists and fascists at this march,” said Mateusz, a 27-year-old wrapped in a Polish flag, “I’m fine with it. I’m just happy to be here.”

According to WSJ:

The Radical Camp’s followers argue, on their social-media accounts and in their literature, that the influx of Syrian refugees into Europe is part of a conspiracy driven by Jewish financiers, who are working with Communists in the European Union to bring Muslims into Europe, and with them, Shariah law and homosexuality.

Though it takes many forms, some sinister and some merely stupid, the resurgence of nationalism and isolationism is a direct challenge to the values of the European Union, as we are all finding out to our cost. These things seem to erupt about once every century, with consequences of which, on Remembrance Sunday, we should all be only too conscious.

Tweet of the week

is a comment from former Head of the Government Legal Department Sir Paul Jenkins on the recent unexpected doubling of the Twitter character limit:

That’s it for now. Thanks for all your tweets, many of which provide source material for which we are very grateful. We’ll try to plug all our borrowings. If you like the blog, you can sign up below for email alerts.

This post was written by Paul Magrath, ICLR blog editor, and does not necessarily represent the views of ICLR as an organisation.