This week’s roundup covers a blocked ban on upskirting, bankers’ profitable wills, a looming crisis of children in care, open courts and a diverse judiciary, plus rifled copyright from the USA and a rebel yell from Oz.

 

Crime

Upskirting shambles

On Friday 15 June the Ministry of Justice announced that ‘“Upskirting” is set to become a specific criminal offence, with perpetrators facing up to two years behind bars, under a new law backed by Government.’ The announcement went on to explain that the government was supporting a Private Members Bill, brought forward by the liberal democrat Wera Hobhouse MP, after a campaign by Gina Martin. 

The Voyeurism (Offences) Bill 2017-19 would create a specific offence of the highly intrusive practice, colloquially known as ‘upskirting’, which ‘typically involves offenders taking a picture under a person’s clothing without them knowing, with the intention of viewing their genitals or buttocks’ with the worst offences carrying a penalty of up to two years’ imprisonment. The second reading of the Bill was due to take place later that day in the House of Commons.

Unfortunately, the MoJ had reckoned without the capacity of the maverick Tory MP, Sir Christopher Chope’s ability to derail the progress of the Bill by shouting, at the critical moment, ‘object’. The result is that the Bill has been blocked. Chope later admitted he had no idea what upskirting was at the time (though it has since been patiently explained to him) – so presumably had not himself read, or read about, the bill to whose second reading he objected. He is said to have objected on purely procedural grounds.

Bizarrely, though, Chope’s objection was understood by some commentators as a stand against excessive or unnecessary legislation – parliamentary activism, if you like – in other words as a substantive rather than procedural objection. See for example, an article by Melanie McDonagh in The Spectator, In defence of Christopher Chope’s ‘upskirting’ objection, the wrongheadedness of which is explained on the Secret Barrister blog in a Guest post by James Chalmers and Ryan Whelan: Melanie McDonagh is plain wrong on “upskirting”

Others, mostly in a facetious vein, took his objection to be a robust endorsement of the practice of upskirting itself.  He might have anticipated this, of course, given his own refusal to articulate his objection beyond the peremptory bark by which it was expressed. He has since told his local paper, the Bournemouth Echo:  

‘The suggestion that I am some kind of pervert is a complete travesty of the truth. It’s defamatory of my character, and it’s very depressing some of my colleagues have been perpetuating that in the past 48 hours.’

Well, depressing it may be, surprising it definitely isn’t.

Another wrongheaded champion turned out to be the solicitor Nick Freeman, calling himself Mr Loophole, whose widely condemned tweet on the subject – suggesting that women who don’t want to be upskirted should take more responsibility for their dress – was given a sarcastic demolition by The Secret Barrister in the i-paper, Don’t wear skirts, and nine other ways people can protect themselves from crime

Following the setback, Theresa May stated that the Government would itself provide time for the Bill to be progressed. She refused to condemn Chope, whose knighthood she appeared to say had been awarded simply because he had been an MP for a long time. (This prompted other MPs who had been MPs for a long time to wonder why they, too, had not been made a knight.)

The need for a comprehensive law dealing with upskirting, revenge porn and other image based sexual offences is discussed by Erika Rackley and Clare McGlynn in an article in The Conversation reposted on Inforrm’s blog: ‘Upskirting’ and ‘revenge porn’: the need for a comprehensive law 

Meanwhile, Gina Martin, whose experience in being targeted by the behaviour sought to be outlawed, has now commented on the whole shambles in a statement contained in this tweet:

Wills

Banks cash in on customers’ death

The Daily Mail reported last week how high street banks were ‘cashing in’ on wills after they offered an apparently cheap will-writing service in the 1970s and 1980s, charging modest sums such as £75, but then sneaking in small print appointing themselves executors and awarding themselves a percentage (up to 2.5%) of the estate. With many personal estates now swollen with inflated house values, grieving families were seeing the banks raking in tens of thousands of pounds.

It’s not suggested that the wills were not properly written; merely that they were, in a sense, mis-sold as being comparatively cheap at the point of drafting. Perhaps many customers did not expect the bank’s ultimate cut to be so lucrative.

The Law Society recommends people to use a solicitor when drawing up their will, though the case law (and classic literature) is full of examples of people writing their own wills. In a recent Australian case (from Queensland, where the law is different), an unsent text message was held sufficiently certain to constitute a valid will: see our Case comment: Re Nichol – an unsent text message as a valid will

But will writing is not regulated. The consumer group Which? investigated this back in 2010, following a Panorama documentary about the ‘independent will writing sector’ and ‘highlighting a handful of rather dodgy cases where will advisers had defrauded clients to the tune of tens of thousands of pounds’ – see Wills that won’t rip you off when you die.

Which? do offer their own will writing service but they also say they would welcome regulation of the sector. As to that the Legal Services Board’s Consumer Panel issued a report in July 2011, under the title Regulating will-writing, recommending regulation of the sector, while stopping short of restricting it to qualified solicitors. During 2012 the LSB undertook two consultations on will-writing, estate administration and probate activities both of which can be found on its website. On 13 February 2013 the LSB recommended in a proposal to the Lord Chancellor that will writing activities should be categorised as a ‘reserved activity’ under the Legal Services Act 2007 – ie something only a qualified lawyer can do – on the basis that the risk of detriment to consumers was significant enough to warrant regulation.

However, that suggestion was rejected by the Lord Chancellor of the day, Chris Grayling.    

Since then, there has been further evidence of abuse and a YouGov survey in 2015 found that 55% of the public were in favour of proper regulation. See a post by solicitor Ben Kinnear on the Hugh James website,  Will writers – The Good, The Bad and the Unregulated

He points out:

‘Currently will writing is not a regulated activity. This means that anyone can set up business as a will writer regardless of their experience or training. It also means that they do not necessarily have the benefit of professional liability insurance in the event that something goes wrong.’

He concludes that ‘Whilst the industry remains unregulated the public may struggle to identify the good will writers from the bad, the unregulated and the uninsured.’ (Where would one put the banks who rip off unsuspecting testators in that taxonomy?)

More recently another solicitor, David Whitworth, at Mowbray Woodwards, has explained Why will writing needs to be regulated

‘The independent wills market is not regulated and sadly, stories of incompetence and grave mistakes being made are not uncommon. Miss-selling and a lack of transparency on costs can also be an issue with unregulated firms. Some Will writers advertise their services at very low rates, but there are often far higher costs that are not disclosed, so the process turns out to be much more expensive than the client anticipated.’

We also contacted the Society of Will Writers (via Twitter), who support self-regulation of the will writing industry, if you can call it that, but their members do not have to be, or practice as, lawyers. We will update this item if and when we hear back from them.

Family

Care Crisis Review

The Family Rights Group launched its sector-led review drawing attention to the alarming rise in the number of children looked after in the care system, reaching record levels in 2017. Speaking at the launch, Sir Andrew McFarlane – who becomes President of the Family Division after Sir James Munby retires in July, and shares Sir James’ anxiety over the crisis said to be engulfing the child protection, care and adoption ‘systems’ – said:

‘Crisis’ may be an overused word and some, outside the court system, may have questioned its deployment by Sir James Munby two years ago in relation to the rise in the number of care applications being received by the courts. For my part, I consider that Sir James was fully justified in calling this a crisis and, as the continuing figures have borne out since, Sir James was plainly right to blow the whistle when he did. The Cafcass figures for last month, May 2018, record the second highest monthly figure for care applications received. I, too, am clear that this is a crisis and I am extremely concerned to see that it is by no means abating.’

For an excellent discussion of the problems and their causes and possible solutions, see Louise Tickle, in the Guardian: Care for our children is in crisis. We must give their families more help

Courts

Open justice under threat

Last week we wrote about the risks, from the development of virtual and online courts, of hiding the process of justice away from public and media scrutiny. But how accessible are our traditional bricks and mortar courts to scrutiny now?

Transform Justice has been following the efforts of one visitor, Pamela Attfield, who wanted to observe her local court in Watford before putting in a small claim herself. She assumed, wrongly, that she would be able to go and watch small claims being decided in court, but she was banned from observing by the judge. Law students under the tutelage of Dr Hannah Quirk at Manchester University have been asked to explain their presence in court and told the judge didn’t like it.

Incidents like this suggest ‘We have the illusion of open justice now, but not the reality’, writes Penelope Gibbs in her Transform Justice blog: Justice must not just be done, but be seen to be done (the title recalls the classic dictum of Hewart CJ in R v Sussex Justices, Ex p McCarthy  [1924] 1 KB 256, 259 that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’)

Gibbs goes on:

‘The government and the judiciary assure us that as a result of their digital reforms “the public should be able to see and hear that which they can currently see and hear in court”. But they have no viable ideas on how to achieve this.’

Given the incidents described above, she is sceptical of the idea that judges should be entrusted with the task of working out how best to keep justice open. There should, she says, be proper public consultation. We agree.

Digital Exclusion

Another issue of concern with the development of a digitised court system is exclusion of those who are not up to speed either technically or in terms of aptitude to interact with such a system. Digital exclusion, as it is known, is the subject of a working party investigation by the human rights and law reform organisation JUSTICE, which has been seeking support via Thunderclap.

JUSTICE says:

‘Online justice services have great potential to increase access to justice, but there is a risk that technology might exacerbate existing barriers to justice.

But we believe that, with more investment in digital inclusion, creative thinking, and inclusive design and technology, there is an opportunity to realise the full potential of the Online Court and to improve access to justice for many people.’

Read the JUSTICE investigation report: Preventing Digital Exclusion from Online Justice

Judiciary

Diversity Committee report

The Judicial Diversity Committee of the Judges’ Council has issued its Report on Progress April 2017 – March 2018 and Action Plan April 2018 – March 2019. Introducing the report, Lady Justice Heather Hallett, Chair of the Judicial Diversity Committee, said that over the last year

‘the judiciary saw some progress on the gender diversity front, but we must do more. We also still have some way to go in increasing both its ethnic diversity and the representation of solicitors in the courts and tribunals. We will continue working collaboratively with the Judicial Appointments Commission to help candidates bette  prepare for the selection process and supporting judges to progress their
judicial careers.’

Going forward, she says:

‘In the next 12 months, the Committee plans to take proactive steps to reach a more diverse pool of lawyers and focus its efforts in key areas including education, attracting new talent and supporting career progression.’

Read the report. 

Dates and Deadlines

New essay competition launched by DELF in memory of John Jones QC

The Defence Extradition Lawyers’ Forum seeks entries of up to 2000 words from law students and junior practitioners in the UK, on the title “What has extradition law done for the law?”  The winning entry will be judged by Mr Justice Andrew Nicol (formerly of Chambers), Edward Fitzgerald QC (Joint Head of Chambers), and Edward Grange (Partner, Corker Binning). Full information on the competition can be found on the DELF website by clicking here, and we will read with interest the winning entry after it is announced on 14th September.

Deadline: 23 July 2018

For further details, see Doughty Street chambers website

BIALL switch-a-roo day

We congratulate Dustan, who is the Librarian of Lincoln’s Inn, on his new role with the British and Irish Association of Law Librarians and look forward to hearing more about his plans for the coming year. And many thanks to Anneli Sarkanen, Senior knowledge & information officer at Fieldfisher, for her sterling presidential work for BIALL over the previous year.

Law (and injustice) from around the world

America

Sculptor claims intellectual property violation by arms lobby group

British sculptor Anish Kapoor has filed a copyright infringement lawsuit against the US National Rifle Association (NRA) after it featured one of his sculptures in a video which, he claimed, calls for “armed violence”, according to the World Intellectual Property Review.  The complaint relates to his famous Cloud Gate sculture prominently located in a park in Chicago. The massive piece resembles a giant chromium coffee bean and is popularly known as The Bean. (You can see a photograph of in in our post #AALL16 – Chicago, here we come!  recording ICLR’s attendance at the American Association of Law Libraries 2016 annual conference in that great city.)

According to WIPR:

‘Kapoor said he registered “Cloud Gate” with the US Copyright Office in 2016 (number VA 1-983-425) and is the sole owner of the copyright. The suit alleged that in June 2017, the NRA published a “controversial video advertisement” which included an image of “Cloud Gate”. The NRA, which advocates for gun rights, describes itself as “America’s longest-standing civil rights organisation”, and now has more than five million members. Kapoor said the video “warns of civil unrest and violence” and is a “clear call to armed violence against liberals and the media”.

See also: ArtNet, The NRA Used Anish Kapoor’s Most Famous Work in a Political Ad. Now the Artist Is Blasting Back.

‘Artist Anish Kapoor today blasted the National Rifle Association in an open letter in collaboration with the gun control advocacy group Everytown for Gun Safety. […]

Kapoor said the NRA used an image of the work—which shows the bean and a surrounding crowd in the plaza—without his consent in a “politicised advertisement” called the “The Clenched Fist of Truth.” In his letter, Kapoor says the ad “plays to the basest and most primal impulses of paranoia, conflict and violence, and uses them in an effort to create a schism to justify its most regressive attitudes.” The artist added that he was “disgusted” to see his work used by the NRA “to promote their vile message.”

 

Australia

Rebel appeal

The actor Rebel Wilson has vowed (on Twitter, where else?) to take her defamation case to the High Court of Australia after the Court of Appeal in Melbourne reduced the damages, in respect of several defamatory articles in Australian magazines, awarded by John Dixon J last year, in Wilson v Bauer Media Pty Ltd [2017] VSC 521 

The CA [2018] VSCA 154 reduced her damages award from $4,749,920 to $600,000 plus interest, after reducing the general damages by $50,000 and disallowing an award of $3,917,472 for economic loss. 

Source: Gazette of Law and Journalism,  The dramatic reduction of Rebel Wilson’s damages (£)

See also: Guardian, Rebel Wilson’s $4.5m defamation damages slashed to $600,000 

We look forward to the HCA’s opinion.

 

Featured image is a stock image purchased from Shutterstock, used purely to illustrate the lead story, and not intended to refer to any living person. In case anyone thought otherwise. Which they probably didn’t. Take care now and don’t abuse your device.