Immigration

Over five million applications have now been made to the EU Settlement Scheme, according to the latest Home Office figures. The scheme only remains open for another four and a bit months, till 30 June 2021, so anyone who has not yet applied should act soon. The scheme requires any EU, EEA or Swiss citizen — even if they have lived in the UK for many years or have a permanent residence document — to apply for settled status (or citizenship) before 30 June 2021 if they wish to be allowed to continue to live and work in the UK.

The Home Office welcomed the figures and announced that a further £4.85 million of grant funding has also been promised for the network of 72 organisations who support vulnerable people in applying to the scheme. (This is on top of the £17 million already provided and includes a range of charities, local authorities and local government associations.)

For more detailed information on applying, see Free Movement:

US Politics

The second impeachment of former President Donald Trump, on a charge of “incitement of insurrection” in relation to the riot at the United States Capitol on 6 January 2021, has failed to result in a conviction. Whether this technical victory can really have restored either Trump’s reputation or that of his party and many of its leading members seems highly doubtful. Nor does this represent the end of the legal proceedings against Trump and his allies. If, like more respectable former presidents, he builds a library to document his place in history, we may find it filled with nothing much more than voluminous court files. As to its design, we may consider the inspiring architectural legacy of his family’s vulgar commercial property empire; and as to the ground in which it may sit, there is always Four Seasons Total Landscaping, the firm which the former president’s former lawyer did so much to promote.

That this second impeachment of Trump was widely expected to fail does not mean that it was wrong to have brought it. There was enough support in the US Senate from independent-minded Republicans to prevent the process being seen solely as a form of procedural revenge by the Democratic party. The process cannot fail to have damaged Trump’s image and that of his unrepentant or intimidated Republican sponsors. Meanwhile, the criminal proceedings against those whom Trump and his allies inspired to engage in violent attack on the institutions of democracy on 6 January (many of whom are blaming him in a bid to exculpate themselves) will continue for months or even years, and in time more evidence of disgraceful conduct will emerge. All of this will be damaging to the chances of any future Republican candidate in the next election, whether it be Trump himself, a member of his nepotium, or one of his supporters in the party; and it could be a decade before the party can find and support a wholly untarnished candidate.

Moreover, for a populist leader to fail at the polls may be a better long term political solution to the problems he represents, than for him to be taken out by a legal process, as David Allen Green pointed out in a post on his Law and Policy blog, The acquittal of Donald Trump — a silver lining.

See also: Al Jazeera, Donald Trump acquitted on charge of inciting US Capitol riot

Media Law

In December 2020 the government published its response to a consultation on its Online Harms White Paper, which it had published in April 2019 setting out various proposals to reduce illegal and harmful online activity. The government proposes a new regulatory framework to tackle online harms, managed by Ofcom (which currently regulates broadcasting, communications and postal services) as the independent regulator. Its primary duty will be to improve the safety of users of online services (and that of non-users who may be directly affected by others’ use of them). The new regulatory framework will apply to companies whose services host user-generated content which can be accessed by users in the UK; and/or facilitate public or private online interaction between service users, one or more of whom is in the UK. It will also apply to search engines.

To implement this regime, the government plans to publish the Online Safety Bill in 2021.

For more commentary on this, see:

Crime

The requirement that a defendant state their nationality to the court at preliminary hearings has been removed from the Criminal Procedure Rules. Samuel March, via the UK Human Rights Blog, explains that

“The CrimPR are rules pertaining to procedure in the criminal courts of England and Wales, namely the Magistrates’ Court, the Crown Court, the Court of Appeal and, in extradition appeal cases, the High Court. CrimPR Part 3 contains rules about case management. This includes rules about pre-trial court hearings, such as the hearings where defendants are asked whether they are going to plead guilty or not guilty and when courts give directions to make sure that everyone prepares properly.

The rules included a mandatory requirement to have defendants state their nationality at first appearance hearings in the Magistrates’ Court and at the first hearing of a given case in the Crown Court. That has now been changed, ostensibly in order to comply with data protection law which precludes collection of nationality information prior to the defendant’s conviction. An amendment made on 8 February 2021 removes the present requirement to collect the information at preliminary hearings.

March explains that there had been other objections to the practice, including a sense that the question could be prejudicial. He cites a tweet from shadow Lord Chancellor David Lammy MP which contains an explanatory video:

International Human Rights

In her latest Silenced voices column in the Literary Review Lucy Popescu discusses the case of citizen journalist Zhang Zhan, who was recently jailed for four years for reporting on the coronavirus outbreak in the Chinese city of Wuhan. Zhang, a former lawyer, used WeChat, Twitter and YouTube as part of her reporting. She was charged with sending false information through text, video and other media and accused of giving media interviews to maliciously stir up the Wuhan Covid-19 epidemic situation. She was eventually convicted in a court in Shanghai on 28 December 2020 for the offence of “picking quarrels and provoking trouble” (a charge often used against dissidents).

As Popescu points out, Zhang is not the first to have been punished for highlighting the shortcomings of the authorities’ response to the coronavirus crisis. Beijing has always attempted to silence criticism and stifle scrutiny. Some have simply disappeared. Hundreds have been accused of spreading false rumours, a standard response to any form of criticism or whistleblowing — as happened to the doctor, Li Wenliang, who had tried to raise the alarm about the new virus among his fellow doctors, and then died himself of the virus. The anniversary of his death was marked by tributes on social media recently, the government having subsequently been forced by public anger and revulsion over his treatment to exonerate and declare him a hero. See BBC: Li Wenliang: ‘Wuhan whistleblower’ remembered one year on

Popescu invites readers to address an appeal on Zhang’s behalf with the Chinese embassy, citing her right to freedom of expression under Article 19 of the Universal Declaration of Human Rights, and urging her immediate release and the cessation of any ill-treatment.

China does not appear to be relenting. It has banned the BBC World News from broadcasting within its borders, and has banned other foreign journalists and media. It has also imposed a crackdown on Apple Daily News in Hong Kong, which has been critical of the Chinese government and that of Hong Kong which, having allowed the Beijing government to impose a new security law over its head, appears to be now little more than a puppet regime. (All opposition party members resigned en masse last year after some of their number were arrested for not being sufficiently patriotic.)

Meanwhile, the UK Home Office expects as many as 150,000 Hong Kong residents to move to the UK this year under a new British National (Overseas) visa scheme.

In Saudi Arabia, a number of women’s rights activists have been released from prison, including Loujain al-Hathloul and Nouf Abdelaziz. They were detained in a crackdown on activism in May 2018.

Al-Hathloul, who advocated for an end to discrimination against women, was not tried until December 2020, when a specialised anti-terrorism court to which her case was transferred sentenced her to five years and eight months in prison, according to Human Rights Watch. She was reportedly tortured during her detention.

Abdelaziz was arrested after expressing solidarity with other activists during the 2018 crackdown.

Their release now is said to be in response to external pressure, including from the new Biden administration in the USA.

Other recent publications

The Internet Newsletter for Lawyers is now an online-only publication. Previously (since the late 1990s) it was published in print bi-monthly, six times a year, with all the articles also being available online. Now it is all online, and the website has been given a makeover. The content is free, though you can register for alerts, and the publication is supported by advertising and sponsorship.

Rosalind English on the UK Human Rights Blog highlights the issue of medical intervention without consent, by reference to an article on Lexology: A Shot in the Arm — Can Leisure and Hospitality require a vaccine to access their Services? which she says provides a cogent analysis. It follows on from her earlier post on vaccine hesitancy.

Prof Richard Moorhead on Lawyer Watch discusses the role of the lawyers who acted for the Post Office in the relentless conduct of its prosecutions of its own sub-postmasters over accounting shortfalls which now appear to have been the fault of a flawed Horizon IT system developed by Fujitsu. Following civil litigation and a reference by the Criminal Cases Review Commission, which has investigated miscarriages of justice in the criminal trials of the sub-postmasters, and the quashing of convictions by the Court of Appeal (see Weekly Notes, 14 December 2020) there is now a public inquiry. Moorhead suggests that the conduct of the lawyers acting for the Post Office should be scrutinised for compliance with both the solicitors’ and prosecutors’ codes of practice.

“The Inquiry needs not to be fobbed off by the usual protestations about legal professional privilege (which the SRA can look behind) or the Horizon Inquiry thinking lawyers work is too technical to fall within the mainstream of their remit. The ways lawyers work can be, and in this case are likely have been, one but not the only central feature of the problems at work in this terrible most concerning of cases.”

Article on SLAW in which Brad Regehr and Vivene Salmon, co-chairs of the Canadian Bar Association, discuss the increasing role of artificial intelligence (AI) in legal processes and the risks of AI taking over the role of judges as “gatekeepers of justice”. Arguments against using machine-based decisions range from taking a person out of the decision-making process to the lack of transparency in the algorithm: it’s impossible to tell what biases are built into the system. “Before we can turn something as important as sentencing or legal decision-making over to AI, we have to find a way to strip this kind of bias out of the process.”

Now the UK has left the EU, we can revert to our traditional approach to the law, suggests Barnabas Reynolds, a partner at Shearman & Sterling, in City AM. “This will involve removing the undesirable elements of the EU scheme and redrafting the provisions that remain, along common law lines. It will also mean increasing the use of case law precedent.”

Reynolds, whose book Restoring UK Law: Freeing the UK’s Global Financial Market, was recently published with Politeia, explains what steps are needed to create a “highly predictable legal and regulatory system that empowers the financial industry to innovate”.

‘What’s all this? This is a court, this ain’t fancy dress’ —If you think a cat filter is ridiculous, you should see what judges and barristers sometimes have to wear in court — and why they should not

With its cumbersome title resembling a Promoted Content ad, David Allen Green’s post on Law and Policy blog has a serious point to make, which is that however funny a lawyer appearing with a cat filter might seem to be (see Weekly Notes, 8 February 2021), the real joke is the wigs and gowns that we take perfectly seriously (or dare not laugh at) in physical court hearings. We have been “conditioned in England to think it perfectly normal that our system of justice is administered in eighteenth-century costumes in ill-suited and creaking Victorian buildings”. And yet without such fancy dress, as this now widely viewed zoom hearing has demonstrated, the judge was “calm and professional” and the dignity of the court maintained.

Which is not to say that the judge didn’t see the funny side of it, or make the most of it as a piece of practice guidance — incidentally boosting his profile on social media (something a judge in England and Wales cannot do). Or make another joke of it later:

When it comes to judges on social media, though, Ferguson may have some work to do catching up with the current star in this regard, Judge Stephen Dillard, Presiding Judge of the Court of Appeals of Georgia, a regular tweeter who recently posted a tour of his court on TikTok.

Dates and Deadlines

Online — 22 February 2021 to 3 March 2021

This conference will look at the myriad of ways Brexit will impact public law in the years to come, as domestic legislation and litigation fills the gap left by EU law. Topics include the Future Relationship Act of 2020, trade, immigration and the EU Settlement Status Scheme (EUSS), social security coordination, enforceable provisions of the Withdrawal Act, retained EU law, and more. All sessions will be divided up between early morning and afternoon to allow for maximum flexibility around work and childcare commitments.

Details: Public Law Project

This features this most fantastic illustration by Martin Rowson:

Monday 22 March to Friday 16 April 2021

The Crown Prosecution Service Legal Trainee Scheme (LTS) will offer positions to those with an interest in criminal law, and seeking to become fully qualified barristers or solicitors. Pupillage is one year in duration whilst the Period of Recognised Training takes two years to complete.

For more details (and a video introduction from Max Hill QC DPP) see CPS website.

And finally…

is from Alexandra Wilson, who says:

“I’ll be on CBeebies this month in a brand new series called “What’s on Your Head?” which explores the things that men and women wear on their head or face in different cultures, jobs and sports around the world.”

This seems a fantastic idea, though we suspect the kids watching it may appreciate the dressing up element more than some of the sterner grown-up critics of our traditional courtly costume (see above).

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: Happy Chinese New Year (of the Ox) – via Shutterstock.