Recent legal news

Secrets and spies

What unites a family court judge and a businessman accused of being a spy? The answer is that they were both the subject of anonymity orders imposed by a court, which were challenged this week.

One of them is the Chinese businessman who appears to have had dealings with Prince Andrew, and also with successive Conservative prime ministers, with a view to promoting business relations between China and the UK, but is now apparently accused of intelligence gathering for the purposes of espionage. The other is the judge, or judges, responsible for the family court orders back in 2019 that Sara Sharif should live with the father and stepmother who last week were convicted of the 10-year-old girl’s brutal murder in August 2023.

A man who consorts with Prince Andrew might have good reasons to want to preserve his anonymity, given the adverse publicity the random royal seems to attract. But for the family court to shroud not only its proceedings but also the identity of its judges in a veil of secrecy is particularly alarming for the cause of open justice. This has happened before, when a bench of lay magistrates sought to conceal their identities; and was roundly condemned by Lord Justice Watkins, in the case of R v Felixstowe Justices, Ex parte Leigh [1987] QB 582, 594–595:

“So far as I have been able to ascertain, anonymity has never been claimed, other than by the number of justices I have mentioned, by anyone who can be said to be a judicial or quasi-judicial person. This applies as much to High Court judges and circuit judges as to, for example, members of tribunals. An inspector at a planning inquiry is by statutory instrument disentitled from being anonymous. It would, I think, be thought outrageous by trade unions and employers’ associations if they were not entitled to know the identity of members of industrial tribunals. Many of the persons I have mentioned are subjected to criticism, vilification even at times, and suffer from being pestered by telephone and otherwise by persons who bear some grievance, and, moreover, occasionally by being wrongly approached by the press. But such intrusions into their private lives judges and others have inevitably to put up with as a tiresome if not worse incidence of holding a judicial office.”

In a less serious, indeed almost farcical case, the name of the judge was accidentally omitted from the online version of a published judgment from the family court; it turned out the name was on the official PDF handout all the time, and the online error was soon corrected, though not before an MP had delivered an indignant tirade to the quote-hungry press. (The curious case of the judge with no name, Transparency Project, 15 January 2015.) Yet the fuss on that occasion served to highlight just how critical to public confidence in the system is the identity of the public functionary delivering justice on the public’s behalf. It is up there with the giving of intelligible reasons for decisions, and the obligation of fairness to all the parties.

Not surprisingly, the press have been in the forefront of attempts to have these decisions reviewed. The anonymity order on the Chinese businessman was lifted during a hearing at the Special Immigration Appeals Commission on 16 December 2024, and he has now been identified as Tengbo Yang. (It appears that MPs were threatening to use parliamentary privilege to name him in the House of Commons, which would have rendered any court order futile.)

BBC: Yang Tengbo: Who is alleged Chinese spy linked to Prince Andrew?

As for the nameless judge(s), that order was upheld by Williams J but is now the subject of an application for permission to appeal to the Court of Appeal, pursued primarily by Louise Tickle and Hannah Summers on behalf of Tortoise and the Observer newspaper. The order has also been the subject of generally critical commentary in social and mainstream media.

Joshua Rozenberg, A Lawyer Writes: Nameless judges

Jawad Iqbal, The Times: Judges in case of Sara Sharif have no right to anonymity

Anonymity may, of course, be justified for judges in some circumstances, such as (perhaps) on social media, especially when not commenting in an official capacity; and perhaps in dealing with organised crime (though this is questionable). As to the latter, see, for discussion and examples: Wilson Center, Blind Justice Always Has a Face: The Influence of Faceless Judges on the US-Mexico Relationship

The criminal case

We know who the judge is in the criminal trial in the Sharif case: it is Mr Justice Cavanagh. Sentencing the three defendants on 17 December, he described their campaign of abuse against Sara as “torture”:

“The degree of cruelty involved is almost inconceivable. This happened in plain sight, in front of the rest of the family, including, for the last eight months of Sara’s life, in front of you, Faisal Malik. The courts at the Old Bailey have been witness to many accounts of awful crimes, but few can have been more terrible than the account of the despicable treatment of this poor child that the jury in this case have had to endure.”

Sara’s father, Urfan Sharif was sentenced to life imprisonment, with a minimum term of 40 years; her stepmother, Beinash Batool, to life with a minimum term of 33 years; and Sara’s uncle, Faisal Malik, for the offence of causing or allowing the death of Sara Sharif, to 16 years’ imprisonment. (R v Sharif, Batool and Malik, Sentencing remarks.)

Though the perpetrators have been sentenced, the case continues to provoke debate, and all the usual questions about what went wrong and how the local social services team, despite known issues, failed to protect this child; and how the concerns of her school and the neighbours were not acted upon. No doubt lessons will be learned in yet another example of the sort of case in which it is always said afterwards that lessons will be learned.

Guardian: Father and stepmother of 10-year-old Sara Sharif found guilty of her murder

Observer: Inexperienced social worker did not identify Sara Sharif’s father as posing any risk

Times: Judge gave Sara Sharif to father despite police ‘abuse’ files

Times: Sara Sharif case leads to calls for statutory inquiry into failings

Courts review

Last week we saw in what a parlous state the criminal justice system — including the criminal courts, with their backlogs and maintenance issues and lack of barristers and judges — had got (see Weekly Notes, 9 December 2024); and now the government has appointed the former President of the Queen’s Bench Division, Sir Brian Leveson, to carry out an independent review into the criminal courts. The review should consider:

a. Longer-term options for criminal court reform, with the aim of reducing demand on the Crown Court by retaining more cases in the lower courts. This could include:

• The reclassification of offences from triable-either-way to summary only.
• Consideration of magistrates’ sentencing powers.
• The introduction of an Intermediate Court.
• Any other structural changes to the courts or changes to mode of trial that will ensure the most proportionate use of resource.

b. The efficiency and timeliness of processes through charge to conviction/acquittal. This includes looking at the processes of the courts but also those of partner agencies in the criminal justice system which affect the efficiency of the criminal courts.

“In addition to the above, the review should make any other recommendations to tackle the outstanding caseload that emerge as a result of reviewing the options and evidence. The review should consider what can be learned from best practice in other jurisdictions and international comparators.”

Announcing the review, the Lord Chancellor Shabana Mahmood said

“We owe it to victims to find bold, innovative approaches that will speed up justice, deliver safer streets and send a clear message to criminals that they will quickly face the consequences of their actions.”

The Times have reported this under the heading Defendants could be denied jury trials as courts backlog grows

Joshua Rozenberg: Judge to review juries

The ministry and its money

The National Audit Office has published its departmental overview of the Ministry of Justice 2023–24, to provide an introduction to the MoJ and its spending, which exceeded £15 billion in 2023–24, and performance. “It is intended to support the Justice Select Committee and Members across the House in their examination of MoJ.”

HM Prison and Probation Service accounts for the largest area of expenditure within the MoJ group (£6,559 million, 45% of expenditure). The next largest areas of expenditure are by HM Courts & Tribunals Service, the Legal Aid Agency and by MoJ on policy, corporate services and associated offices costs, each with expenditure over £2 billion. The MoJ also receives some income, from fines, levies and fees.

As we have seen above, it needs more funding; and yet the indications are that the government intends to cut spending because any more tax increases are likely to stifle economic growth and it has already borrowed too much. The watchword is efficiency. (But perhaps it should be “false economy”.)

Barristers: double standard discipline?

The barrister Dr Charlotte Proudman has successfully exposed what she called the “double standards” at the heart of the Bar Standards Board’s regulation of social media output by barristers. Proudman was charged by the BSB after posting tweets criticising a judge, who was a member of the then men-only Garrick Club, for displaying a “boys’ club” attitude in a judgment, and for his “minimisation of domestic abuse”; but other barristers who had tweeted rude things about other judges, or about her, were not the subject of disciplinary action. She claimed that the BSB was displaying sex discrimination and successfully argued that the case against her should be dropped.

The Bar Disciplinary Tribunal, chaired by His Honour Nicholas Ainley, agreed: on 12 December 2024 the Tribunal dismissed all charges and the hearing has concluded, with full reasons to follow. We look forward to reading these. According to newspaper reports, the tribunal found that her posts “had reflected the judge’s ruling and concerned a matter of public interest — domestic violence — and were therefore protected by her right to free speech”.

The Times: Barrister cleared of misconduct over ‘boys’ club judge’ tweet and interview, also by Catherine Baksi: Dr Charlotte Proudman: ‘Bar watchdog weaponised sexist bullying’

Louise Tickle, Tortoise: Charlotte Proudman: case against leading feminist barrister “should never have been brought”

Guardian: Bar Standards Board ‘failed to protect’ female barrister from online gender violence

Solicitors: in danger

“Lawyers cannot expect, and in my experience do not expect, to be immune from scrutiny or informed criticism but they have the right to be able to work without fearing for their safety.” So said Mr Justice Bennathan in R v Medlock (Cavan), 12 December 2024, when dealing with a man last week who was found to have perpetrated a terrorist attack on an immigration law firm.

On 7 September 2020 Cavan Medlock arrived at law firm Duncan Lewis and demanded to see one of the partners, Toufique Hossain, who had been named in a recent press article as someone representing immigrants. According to the BBC report of the case, Court finds neo-Nazi planned attack at law firm:

“Medlock said he had chosen the firm and its immigration chief as targets after they had been named in a Daily Mail article three days earlier. …

“Medlock repeatedly asked to see the firm’s head of immigration law — but after about 15 minutes of waiting, he pulled out a six-inch knife and lunged at a receptionist. The member of staff succeeded in disarming Medlock, who was ultimately overwhelmed and subdued by other staff who rushed to the scene. Medlock then declared that he had come to kill the senior lawyer he had been asking for and used racially offensive language against other members of staff.

When one of them identified herself as Jewish, Medlock expressed support for Hitler and the Holocaust. Police later found a Swastika flag in his bag — and his interview confirmed an ideological motive that fitted the legal definition of terrorism.”

Medlock’s trial was postponed after a mental health episode; and after findings of fact were made, he was made subject to a hospital order.

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Recent case summaries from ICLR

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

CHILDREN — Children in need — Welfare services: R (DF) v Essex County Council, 10 Dec 2024 [2024] EWCA Civ 1545; [2024] WLR(D) 544, CA

COSTS — Order for costs — Pro bono costs order: Manolete Partners plc v White, 12 Dec 2024 [2024] EWCA Civ 1558; [2024] WLR(D) 547, CA

CRIME — Evidence — Hearsay: R v BOB, 05 Dec 2024 [2024] EWCA Crim 1494; [2024] WLR(D) 538, CA

CRIME — Jury — Irregularity relating to jury: R v Bah (Ibrahima), 11 Dec 2024 [2024] EWCA Crim 1499; [2024] WLR(D) 546, CA

CRIME — Restraint order — External request for provisional measures from member state of European Union: Wieromiejczyk v Director of Public Prosecutions, 06 Dec 2024 [2024] EWCA Crim 1486; [2024] WLR(D) 536, CA

INJUNCTION — Anti-suit injunction — Application: Marsh Ltd v Greensill Bank AG, 03 Dec 2024 [2024] EWHC 3068 (Comm); [2024] WLR(D) 543, KBD

INJUNCTION — Trespass — Persons unknown: Shell UK Ltd v Persons Unknown (Shell International Petroleum Co Ltd v Persons Unknown, Shell UK Oil Products Ltd v Persons Unknown), 05 Dec 2024 [2024] EWHC 3130 (KB); [2024] WLR(D) 537, KBD

REVENUE — Income tax — Late filing of returns: R (Zafari) v Revenue and Customs Comrs, 28 Nov 2024 [2024] EWHC 3014 (Admin); [2024] WLR(D) 545, KBD

ROAD TRAFFIC — Negligence — Causation: Ali v HSF Logistics Polska sp z oo, 04 Dec 2024 [2024] EWCA Civ 1479; [2024] WLR(D) 532, CA

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Recent case comments on ICLR

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

QMLR: Public Authorities and Negligence: Lessons from Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33; [2024] 3 WLR 822, SC(E)

Law Society Gazette: Serving claim form on ‘persons unknown’ out of jurisdiction now requires hearing: Anton Chirkunov v Person(s) Unknown [2024] EWHC 3177 (KB), KBD

Local Government Lawyer: Providing support for children with complex needs: In re SB; Conwy County Borough Council v PR [2024] EWHC 2964 (Fam), Fam D

Local Government Lawyer: Making FGM protection orders: AS v Waltham Forest London Borough Council [2024] EWHC 2808 (Fam); [2024] 4 WLR 92; [2024] WLR(D) 471, Fam D

Electronic Immigration Network: No Recourse to Public Funds and Article 3: Proving Systems Duty Breaches: SAG v Secretary of State for the Home Department [2024] EWHC 2984 (Admin), KBD

Nearly Legal: Ealing comedy. Getting statutory nuisance very wrong: Ferko v Ealing Magistrates’ Court [2024] EWHC 2592 (Admin); [2024] WLR(D) 439, KBD

Law Society Gazette: Family case must be reheard after barrister spoke to father and appeared for mother: F v M [2024] EWHC 3190 (Fam), Fam D

UK Human Rights Blog: Misuse of private information: Google and DeepMind Technologies: Prismall v Google UK Ltd & Anor [2024] EWCA Civ 1516, CA

Free Movement: Separated Afghan family lose judicial review as ex-wife deemed not to be an “additional family member”: R (HS) v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 3197 (Admin), KBD

Local Government Lawyer: Court of Appeal hands down ruling on restrictions on use of section 73 TCPA: Test Valley Borough Council v Fiske [2024] EWCA Civ 1541, CA

Free Movement: Court of Appeal dismisses Iranian asylum appeal: S v Secretary of State for the Home Department [2024] EWCA Civ 1482, CA

Global Freedom of Expression: Harutyunyan v. Armenia: expands expression: Harutyunyan v Armenia (Application no. 15028/16), ECtHR

Free Movement: Unrepresented claimant fails in judicial review of voided application: R (Scott) v Secretary of State for the Home Department [2024] EWHC 3110 (Admin), KBD

Law Society Gazette: Court of Appeal finds against Shell in environmental claims over oil spills: Alame & Ors v Shell PLC & Anor [2024] EWCA Civ 1500, CA

UK Human Rights Blog: Father allowed to proceed with embryo surrogate treatment after death of mother: Court of Protection: EF v Human Fertilisation and Embryology Authority [2024] EWHC 3004 (Fam), Fam D

Free Movement: Court of Appeal allows appeal on EU Settlement Scheme dependency rules: R (Ali) v Secretary of State for the Home Department [2024] EWCA Civ 1546, CA

Law & Religion UK: Balancing heritage and necessity: Consistory Court jurisdiction in managing churchyard trees: In re St Kenelm Upper Snodsbury (unreported) Judgment PDF, Const Ct

Free Movement: Terms of loan agreement must be clear to meet requirements of a Tier 1 (Entrepreneur) application: R (Waljee) v Secretary of State for the Home Department [2024] UKUT 418 (IAC), UT

AND FINALLY…

Christmas and New Year courts and tribunals opening times 2024

HMCTS have announced that all their courts and tribunals will temporarily close on various dates over the Christmas period. The closure dates for this year are:

• Wednesday 25 December 2024
• Thursday 26 December 2024
• Friday 27 December 2024
• Wednesday 1 January 2025

Some magistrates’ courts will be open on 26 December 2024 and 1 January 2025, but for remand hearings only.

On Friday 27 December 2024, only County and Family Courts, Crown Courts, the High Court, Court of Appeal (Royal Courts of Justice and Rolls Building) and some tribunals will be closed. Magistrates’ courts and our Scotland tribunal offices will open on this day. In Scotland, tribunal offices will also be closed on Thursday 2 January 2025.