Recent legal news

Judiciary

Should judges speak out, or should they be the judishhhhh!ary? The question of how much judges should say in public outside their judicial role has worried the top wigs for decades. In the 1950s the then Lord Chancellor, Lord Kilmuir, urged judges to keep their traps shut. He said:

“So long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism.”

This ‘trappist’ vow of silence became known as the Kilmuir Doctrine. It has been discussed in more recent times in speeches by serving judges which effectively prove that it no longer applies: see, for example, Lord Neuberger, giving the Holdsworth Lecture in 2012 (Where Angels Fear to Tread), and Sir Alan Moses, giving the Tom Bingham lecture in 2014 (Wearing the Mourning Robes of our Illusions: Justice in a Spin). And indeed, judges are now much more forthcoming in commenting publicly about their roles and about the law more generally. As well as giving speeches and lectures, they appear on conference discussion panels and support public legal education with visits to schools and do little cameo videos on the Judiciary website. They just avoid saying anything politically controversial. (For more on this, see ICLR blog: Trappists v Spinners: shaping the legal discourse)

All that is very good, as far as it goes. But judges are strongly urged to stay away from the increasingly toxic environment of social media, which is thought to include anything from a tweet to a blog post. Anything unmediated and liable to manipulation or misconstruction. Although not officially published yet, this has been the topic of new ‘guidance’ to judges at all levels in England and Wales.

There was a time when Twitter, as it was known, was considered a good thing for public legal education. American judges, many of whom stand for election and require to be known to their public, are keen users of social media for public legal educational purposes. In this country they have been more discreet. Yet among the top silks, junior barristers and solicitors, the platform once featured a number of ‘secret’ or pseudonymous judiciary, or supposed judiciary, with names like Mr Justice Serious, Ms Justice Khan’t and Mr Justice Denied. They entered an arena in which the Secret Barrister (still rabbiting on), Brenda the Usher, and Mandy in Listing all commented with varying degrees of tongue-in-cheekery on the hot legal topics of the day. We commented on this at the time: Judges on Twitter: lowering the bar or shattering the mystique?

Since then Twitter has been X-rated and down-graded. Its new owner is not known for doing anything in moderation, and moderation of content is no exception. Lots of tweeting birds have gone X-directory, fluttering off to bluer skies elsewhere, and if any judges were still secretly lurking there, they must now consider themselves properly warned to go full metal Kilmuir.

Joshua Rozenberg has discussed the new judicial guidance on his A Lawyer Writes substack: What not to say on X.

“The unpublished guidance says that members of the judiciary must not post, reply to, ‘like’ or repost anything on social media that could call into question their judicial independence, integrity or impartiality. They are instructed not get involved in arguments or debates about controversial subjects, even to correct inaccurate or offensive content posted by others.”

Rozenberg calls this ‘wise advice’ but wonders to what extent it binds retired judges, one of whom, Lord Dyson, he has interviewed on his podcast in an episode called: What can former judges do?

One thing they can do, thinks Sir James Munby, former President of the Family Division, is to speak out on policy developments where serving judges cannot. He has recently commented (via the Transparency Project) on the Law Commission’s current consultation on the law of Contempt of Court, and its failure to tackle s 12(1)(a) of the Administration of Justice Act 1960 and the effect of contempt law on family justice transparency (see Law Commission — Contempt of Court project — Memorandum by Sir James Munby) ; and on the proposals for judicial approval of decisions by doctors under the Assisted Dying legislation, such as the Terminally Ill Adults (End of Life) Bill currently under parliamentary scrutiny (see Assisted Dying: What role for the judge? Some further thoughts).

Meanwhile, ours is not the only jurisdiction whose judges are being urged to exercise caution in their commentary. The Canadian Judicial Council (CJC) has also issued ethical guidelines for judges on the use of social media, as a recent post on SLAW exlains: Ian Mackenzie, The Canadian Judicial Council Guidelines on Social Media Use — an Important First Step

Public finances

The National Audit Office has published a ‘topic overview’ on The impact of fraud and error on public funds 2023–24. The picture it paints isn’t pretty.

“Fraud and error cost the taxpayer billions of pounds each year — but most of the potential loss goes undetected. Based on the Public Sector Fraud Authority’s (PSFA) methodology, we estimate that fraud and error cost the taxpayer £55 billion to £81 billion in 2023–24. Only a fraction of this is detected and known about — enabling investigation and recovery.”

The report provides an introduction to the impact of fraud and error on public funds, how public bodies can tackle fraud and error, and the NAO’s examination of the topic. It is intended to support the Committee of Public Accounts, and Members across the House in their examination of how government manages fraud and error and some of the things it could do to improve.

Media and communications

Interesting post on the LSE blog, arguing that To combat misinformation effectively, people must see it is a problem and trust sources countering it. Dr Jens Koed Madsen, Assistant Professor in Psychology, cites vaccine hesitancy and the riots that followed the Southport murders this summer as examples of the harmful consequences of misinformation, and discusses the possible remedy of ‘inoculation’ by way of weakened doses of misinformation to stimulate and develop a resistance that can then fight bigger lies.

“This is akin to media literacy techniques that teach people how to think critically to improve their engagement with arguments in the future. It is often referred to as pre-bunking. By training critical thinking and recognition of cues, inoculation offers a potential path toward addressing the effects of misinformation without impeding people’s freedom of speech.”

Assisted dying

More commentary on the controversial proposals for new legislation:

UK Human Rights Blog:

Public Law for Everyone:

A Lawyer Writes:

  • Joshua Rozenberg: Assisted dying (What would Kim Leadbeater’s bill do — and what role would judges have?)

Miscarriages of justice

A case that continues to fascinate and appal anyone interested in miscarriages of justice is that of the Birmingham Six, wrongly convicted for a pub bombing in 1974. This year marks the 50th anniversary of the atrocity, and the arrest of the six suspects. They were convicted, on tainted evidence and coerced confessions, at a trial in 1975, after which they were each sentenced to life for the murders of 21 people. In 1991, their convictions were quashed and the men were released from prison, largely thanks to Chris Mullin, an investigative journalist, who by that time was also a Labour MP. But who was really responsible for the bombings? Though names have been suggested, and admissions made, no one else has yet faced justice for the offences. Now there are calls for a public inquiry.

BBC: Why Britain’s biggest unsolved mass murder is being revisited 50 years on

Event: City Law School, City, University of London: Error of Judgement — The Truth about the Birmingham Bombings — 30th Anniversary

New edition of Mullin’s book, Error of Judgement, via Hachette.

Public order

Abortion clinics have been the target of protests and prayers, the latter seen by some as a silent manifestation of the former. At the end of last month the government announced that women accessing abortion services would be ‘better protected from harassment or distress’ as protection zones came into force around abortion clinics. From this month a 150-metre boundary will be in place around all clinics and hospitals offering abortion services known as a ‘safe access zone’. Safe access zones were introduced through the Public Order Act 2023, following a free vote in Parliament that received cross-party support. Guidance has been issued to help decide what acts of devotion, distraction or disruption might constitute an infringement.

See also: Law & Religion UK blog, Safe access zones and silent prayer at abortion clinics

Recent case summaries from ICLR

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

COSTS — Order for costs — Protective costs order: White v Plymouth City Council, 13 Nov 2024 [2024] EWHC 2854 (Admin); [2024] WLR(D) 496, KBD

EMPLOYMENT — Contract of employment — Rectification: Tyne and Wear Passenger Transport Executive (trading as Nexus) v National Union of Rail, Maritime and Transport Workers, 13 Nov 2024 [2024] UKSC 37; [2024] WLR(D) 495, SC(E)

IMMIGRATION — Employer’s penalty notice — Appeal: Akbars Restaurant (Middlesbrough) Ltd v Secretary of State for the Home Department, 11 Nov 2024 [2024] EWCA Civ 1387; [2024] WLR(D) 501, CA

JUDGMENT — Enforcement — Recovery from pension fund: Manolete Partners plc v White, 15 Nov 2024 [2024] EWCA Civ 1418; [2024] WLR(D) 491, CA

LAND REGISTRATION — Registration — Adverse possession: Clapham v Narga, 11 Nov 2024 [2024] EWCA Civ 1388; [2024] WLR(D) 482, CA

MARRIAGE — Divorce — Financial provision: GH v H, 12 Nov 2024 [2024] EWHC 2869 (Fam); [2024] WLR(D) 493, Fam D

PARTNERSHIP — Dissolution — Effect: Frontiers Capital I Ltd Partnership (Acting by Frontiers Capital General Partner Ltd) v Flohr, 11 Nov 2024 [2024] EWCA Civ 1385; [2023] WLR(D) 503; [2024] EWCA Civ 1385, CA

PRACTICE — Documents — Disclosure to non-party: Moss v Upper Tribunal, 15 Nov 2024 [2024] EWCA Civ 1414; [2024] WLR(D) 499, CA

PRACTICE — Summary judgment — Claimants bringing proceedings in relation to personal guarantees given by defendant: Jeckz Investment Ltd v Yeung, 14 Nov 2024 [2024] EWCA Civ 1413; [2024] WLR(D) 490, CA

SHIPPING — Bill of lading — Time bar: FIMbank plc v KCH Shipping Co Ltd, 13 Nov 2024 [2024] UKSC 38; [2024] WLR(D) 494, SC(E)

Recent case comments on ICLR

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

Global Freedom of Expression: Suprun v Russia (and other cases): expands expression: Suprun v Russia (Application nos. 58029/12, 29440/19, 12396/21, 61350/21, and 25390/22), ECtHR

Information Rights and Wrongs: Non-party access to court documents: Moss v The Upper Tribunal [2024] EWCA Civ 1414, CA

UK Human Rights Blog: The Supreme Court prioritises substance over form in protecting the welfare of children in an immigration context. Explicit reference to guidance is neither sufficient nor necessary: CAO v Secretary of State for the Home Department [2024] UKSC 32; [2024] 3 WLR 847; [2024] WLR(D) 454, SC(NI)

QMLR: Extracting Informed Consent: Winterbotham v Shahrak [2024] EWHC 2633 (KB), KBD

Nearly Legal: “It must have consequences”: Coastal Housing Group Ltd v Mitchell [2024] EWHC 2831 (Ch); [2024] WLR(D) 500, Ch D

UK Constitutional Law Association: A confused approach to irrationality: Oakley and Sneddon v Secretary of State for Justice: R (Sneddon) v Secretary of State for Justice [2024] EWCA Civ 1258; [2024] WLR(D) 459, CA

Nearly Legal: Rent determinations — Appeals: Kensington Avenue Ltd v Curlin [2024] UKUT 341 (LC), UT

Law Society Gazette: CFA success fee ‘excessive’, Strasbourg rules in Daily Mail case: Associated Newspapers Ltd v United Kingdom (Application no. 37398/21), ECtHR

Nearly Legal: Leasehold notes — RTM notices and Rule 13 costs: A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27; [2024] 3 WLR 601; [2024] WLR(D) 406, SC(E)

AND FINALLY…

ICLR news

Congratulations to barrister Emma Meadows, winner of the 2024 ICLR Pupillage Award, seen here receiving her certificate from the award judges, Mr Justice Roth, Acting President of the Competition Appeal Tribunal (where the award reception was held), Margaret Bowron KC, of 1 Crown Office Row, and Brendan Wright, barrister, Editor of The Law Reports.

The picture in the background is a reproduction of a portrait of Lord Mansfield CJ.

Emma is currently doing her pupillage at 30 Park Place chambers in Cardiff.

For more about ICLR’s annual Pupillage Award, see our website.

That’s it for now! Thanks for reading, and make sure you’re signed up for our email alerts.

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: Shhhh! via Shutterstock