Police

Daniel Morgan investigation report

Last week the Daniel Morgan Independent Panel published the final report of their inquiry into the murder of private investigator Daniel Morgan outside the Golden Lion public house in Sydenham, South East London on 10 March 1987, and the series of failed police investigations which have subsequently failed to result in any conviction. The report points out that

“For more than three decades the failure to prosecute those responsible for Daniel Morgan’s murder has caused great distress and concern to his family, generated a great deal of public disquiet, and affected the reputations of organisations and individuals.”

Part of the public disquiet has resulted from a strong belief among those who have looked into the matter, that resistance to investigation of the circumstances surrounding the murder stems from corruption on the part of the police — a belief the report now confirms to be justified — as well as the existence of an “unholy nexus” between police, tabloid journalists, and the private investigators who operated as go-betweens. The matter has been reported extensively by Private Eye and Byline Times, and is the subject of a compelling book and podcast by Peter Jukes and Daniel Morgan’s brother Alistair Morgan: Untold: The Murder of Daniel Morgan and True Story Behind The Headlines (Blink publishing).

There have been four major police investigations into Daniel Morgan’s murder, an inquest, several disciplinary investigations, complaints investigations and other operations. The panel was established in 2013 by the then Home Secretary, Theresa May MP, following a failed prosecution in 2011. According to its Terms of Reference:

“The purpose and remit of the Independent Panel is to shine a light on the circumstances of Daniel Morgan’s murder, its background and the handling of the case over the whole period since March 1987. In doing so, the Panel will seek to address the questions arising, including those relating to: • police involvement in the murder; • the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption; and • the incidence of connections between private investigators, police officers and journalists at the News of the World and other parts of the media and alleged corruption involved in the linkages between them.”

The panel has now concluded that there is “institutional corruption” at the Metropolitan Police Force, which was more anxious to cover up its own acts and omissions than to bring the killer(s) to justice. Writing to the present Home Secretary, Priti Patel MP, the panel chair, Baroness Nuala O’Loan said:

“The Panel has made a number of recommendations, as a consequence of what it has identified in the course of its work. They relate to important areas, where there continue to be serious shortcomings in current policy and practice in policing and the Criminal Justice System. They include ensuring that the necessary resources are allocated to the task of tackling corrupt behaviour among police officers, and the creation of a statutory duty of candour to be owed by all law enforcement agencies to those whom they serve, subject to the protection of national security and relevant data protection legislation.”

The finding of institutional corruption was rejected by the Metropolitan Police Commissioner, Cressida Dick, according to The Guardian. She said that it was a “matter of great regret that no one has been brought to justice and that our mistakes have compounded the pain suffered by Daniel’s family”. But she hit back at the report’s findings, saying: “I don’t accept that we are institutionally corrupt, no.” (She has said much the same about the finding of institutional racism levelled against the force by the Macpherson Report into the murder of Stephen Lawrence.) Daniel Morgan’s son rejected an official apology and said Commissioner Dick should consider her position.

Crime

Rape review

The Ministry of Justice published the Report on Findings and Actions of its Review into the Criminal Justice System response to adult rape and serious sexual offences across England and Wales. This report sets out the government’s action plan for improving the Criminal Justice System’s response to rape in England and Wales. A press release promised “Sweeping reforms to increase the number of rape cases reaching court while bolstering support for victims”. The government’s action plan included:

increasing the volume of cases progressing through the system so that more cases get to court, and more convictions are delivered, returning to 2016 levels
increasing victim engagement at every stage of the process
an undertaking not to de-prioritise cases just because they were complex, difficult or historic
aiming to increase the number of early pleas (of guilty, presumably) by improving the speed and quality of investigations, thus avoiding or reducing victim trauma
reducing the extent of intrusive data searches and information gathering from victims to what is necessary and proportionate while maintaining the defendant’s right to a fair trial
and speeding the process up generally.

The Law Society president I. Stephanie Boyce welcomed

“the clear commitment that improvements to the system for victims must not come at the expense of a fair trial for defendants. But she also warned that without new cash, the impact of the review could be severely hampered.”

The Criminal Bar Association issued a statement by its chair, James Mulholland QC, which began by saying:

“Fundamental reviews of the way criminal allegations of rape offences are handled in the criminal justice system must focus on reversing the cataclysmic decline in charging rates for this serious crime category over the past five years, whilst at the same time maintaining a commitment to fairness in the entire evidential disclosure and trial process for complainant and suspect alike, whatever the category of offence, or there will be no just outcome for any court participant and once again the public will be the poorer.”

Many criminal practitioners voiced similar caveats.

The Rape Review is not worth the paper it’s written on until the Courts & Prisons get the basics right.

Serious sexual offences involving a young child due for sentence today.
Families are all here.
We are all here.

Not the defendant because SERCO don’t have enough vans.

— Mary Aspinall-Miles (@MAMBarLife) June 21, 2021

Constitution

What next: forward or back?

Giving a speech at the UCL conference on the constitution last week the Lord Chancellor, Robert Buckland QC MP said one of his primary aims was

“to restore law and justice to their rightful place at the heart of our society. This means looking again at our human rights framework for example, and the relationship between Parliament and the Courts — to ensure that they continue to work as the public would want and expect.”

The speech has given rise to some anxious speculation about the sort of legislative tinkering this might lead to. Buckland himself issued a tweet in which he declared: “Today I spoke @UCL about the rule of law and judicial review — why I worry that the former is being used to hijack the latter to conduct politics by other means.” That set off a thread by George Peretz QC, in which he addressed the idea that the Lord Chancellor was really discussing the idea of a return to the political constitution model that was the orthodoxy for much of the 20th century — “good chaps” trusted to exercise self-restraint without legislative boundaries needing to be imposed. Dinah Rose QC agreed, suggesting

“The talk is incoherent intellectually. But its function is purely political — to give a figleaf of respectability to the executive power grab, and to clothe it in a reassuringly cosy ‘back to the 1950s’ image”.

In a piece titled “Flexing the constitution” Joshua Rozenberg, on A Lawyer Writes, noted that “It was a high-level speech to a conference of constitutional specialists and it deserves a careful reading.” He went on to say that

“In the discussion that immediately followed Buckland’s speech to the UCL Constitution Unit, we agreed that the British constitution was in a state of flux. What nobody can tell is whether the reforms now under consideration will leave it cracked and shattered.”

See also, Rozenberg’s column in the Law Society Gazette, A constitutional ‘linchpin’ that came loose

Family law

Outdoor weddings to be ‘legalised’

Somewhat amazingly, it has not been legal (or legally effective) to hold a wedding outdoors in this jurisdiction, as one often sees in Hollywood movies — until now. Or rather not just yet: you’ll have to wait till 1 July. From that day forward (or at least until April 2022), it will now be possible for the happy couple to have the whole ceremony outside.

On 1 July 2021 the law will change to allow civil marriages & partnerships to take place legally outdoors on Approved Premises 💍 💌

This is part of our commitment to give couples more choice over where they get married or form civil partnerships.

Read https://t.co/aeAE8UxcuB pic.twitter.com/1M1DYZ6wnh

— Ministry of Justice (@MoJGovUK) June 20, 2021

The temporary change in the law will be brought into effect by secondary legislation. However, as Russell Sandberg writes on Law & Religion UK in a piece cross-posted from his website, Outdoor weddings in England and Wales: the truth behind the headlines:

“The Government’s announcement over the weekend that civil weddings outdoors are to be legalised on a temporary basis might, at first glance, appear to be a major development in marriage law and a massive support to the weddings industry following COVID. However, while this is a welcome change, it is also a modest and limited one. It does not answer the now deafening call for fuller reform of marriage law and there is a risk that this change might be wrongly seen as the ‘fix’.”

The problem is that this only applies to weddings of the sort that would have been legally effective if conducted in an “approved premises”: it does not apply to weddings solemnised outside the ambit of the Marriage Act 1949. Such weddings still need to be yoked to a civil ceremony to be legalised, as it were.

“Wedding ceremonies by independent celebrants and belief organisations — many of which take place outdoors anyway — are still not legally recognised, meaning that such couples still have to book a register office ceremony — which will still be inside and which will add further to the backlog.”

A Law Commission report later this year will present options for further reforms which will then be considered carefully by the Government.

Legal information

New national database of judgments

The Ministry of Justice last week announced its plans for the archiving and publication of judgments in a comprehensive new national database to be managed by The National Archives (TNA): “Boost for open justice as court judgments get new home”

ICLR was not consulted about this development, despite having been for the last century and a half the publishers of official series of The Law Reports. When the Council of Law Reporting was founded in 1865, as a joint venture between the Inns of Court and the Law Society, with the approval and under the supervision of the government law officers, it adopted a selective approach to the reporting of cases which favoured those of precedential or instructive value, ignoring or discarding any case which did not introduce or explain a new principle or have instructive value. That meant that ICLR, as it became, exercised a gatekeeper function in preserving for posterity only those judgments of interest to the profession or academic legal study. Other cases could, of course, be reported by other publishers, and many were. But many simply disappeared into oblivion.

However, in one of the earliest council meetings a proposal was made that ALL the judgments of the senior courts should be reported, regardless of precedential value, as a way of preserving a complete record. This is in essence what BAILII set out to do, 135 years later, once digital documentation and the internet made it feasible and relatively cheap to do. Since then, ICLR has belatedly recognised the value to researchers of having access to a comprehensive record of the courts’ activities (while continuing to select the important cases for reporting). Moreover, the principle of open justice demands it. While BAILII has been an incomplete record, it has been far better than any commercial publisher would have been on the same budget, and that is largely due to the goodwill and support it has engendered among the judiciary (first and foremost) and its many generous sponsors and donors. But BAILII can only publish what judges and courts send it, and unless there are systems in place to ensure the comprehensive publication of all judgments from every court, there will not be a complete record anywhere. Such a complete and comprehensive approach was indeed the recommendation of the Legal Education Foundation report on Digital Justice by Dr Natalie Byrom in 2019, on the basis of which the Ministry of Justice have decided to ask the National Archives to create a new database (within the scope of their existing powers and duties under the Public Records Act 1958).

ICLR already works closely with both BAILII and TNA in linking to and from their respective bodies of content via its online platform ICLR.3 and fervently hopes to continue. But we also welcome the opportunity to open a new chapter in our relations with TNA and thereby, we hope, provide a more complete and comprehensive service ourselves.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.3:

ARBITRATION — Award — Enforcement: Betamax v State Trading Corpn, 14 Jun 2021 [2021] UKPC 14; [2021] WLR(D) 337, PC

CHILDREN — Care proceedings — Joinder: In re R (A Child), 15 Jun 2021 [2021] EWCA Civ 875; [2021] WLR(D) 341, CA

CORONER — Inquest — Verdict: R (Morahan) v West London Assistant Coroner, 11 Jun 2021 [2021] EWHC 1603 (Admin); [2021] WLR(D) 333, DC

COSTS — Detailed assessment — Conditional fee agreement: SGI Legal LLP v Karatysz, 11 Jun 2021 [2021] EWHC 1608 (QB); [2021] WLR(D) 334, QBD

CRIME — Harassment — Restraining order: R v Jackson (John), 15 Jun 2021 [2021] EWCA Crim 901; [2021] WLR(D) 347, CA

DATA PROTECTION — Personal data — Processing: Facebook Ireland Ltd v Gegevensbeschermingsautoriteit, 15 Jun 2021 (Case C-645/19); EU:C:2021:483; [2021] WLR(D) 346, ECJ

ECCLESIASTICAL LAW — Practice — Schemes of delegation: In re St Giles, Exhall, 16 Jun 2021 [2021] WLR(D) 348; [2021] EACC 1, Arches Ct

EMPLOYMENT — Unfair dismissal — Interim relief: Steer v Stormsure Ltd, 11 Jun 2021 [2021] EWCA Civ 887; [2021] WLR(D) 336, CA

ENVIRONMENT — Protection — Climate change: R (Elliott-Smith) v Secretary of State for Business, Energy and Industrial Strategy, 15 Jun 2021 [2021] EWHC 1633 (Admin); [2021] WLR(D) 342, QBD

PLANNING — Gipsies and travellers — Planning policy: Smith v Secretary of State for Housing, Communities and Local Government (Equality and Human Rights Commission intervening), 17 Jun 2021 [2021] EWHC 1650 (Admin); [2021] WLR(D) 344, QBD

PRISONS — Prisoners’ rights — Transfer to open conditions: R (John) v Secretary of State for Justice, 14 Jun 2021 [2021] EWHC 1606 (Admin); [2021] WLR(D) 338, QBD

WATER — Sewerage — Discharge: Manchester Ship Canal Co Ltd v United Utilities Water Ltd (United Utilities Water Ltd v Manchester Ship Canal Co Ltd), 15 Jun 2021 [2021] EWHC 1571 (Ch); [2021] WLR(D) 343, Ch D

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.3 includes:

Free Movement: Rehabilitative work in the community no barrier to deportation: Jallow v Secretary of State for the Home Department [2021] EWCA Civ 788, CA

Law & Religion UK: Religious circumcision in the courts again: PP (Circumcision: Child in Care) [2021] EWHC 1616 (Fam), Fam D

RPC Perspectives: William Grant & Sons v Lidl: where to be-gin? William Grant & Sons Irish Brands Ltd v Lidl Stiftung & Co KG [2021] CSOH 55, Ct of Sess

Transparency Project: Dodgy drug test results: Greater Manchester Police v Zuniga [2021] EWHC 1572 (Fam), Fam D

UK Supreme Court Blog: New Judgment: Khan v Meadows [2021] UKSC 21: Meadows v Khan [2021] UKSC 21, SC(E)

Cearta.ie: Unjust enrichment by failure of consideration: HKR Middle East Architects Engineering LC v English: HKR Middle East Architects Engineering LC v English [2019] IEHC 306, (No 2) [2021] IEHC 142, (No 3) [2021] IEHC 376, High Court of Ireland

Doughty Street chambers: Court of Arches finds refusal of Irish-only inscription on Coventry family’s gravestone was discriminatory: In re St Giles, Exhall; ex p Newey [2021] EACC 1, Arches Ct

UK Human Rights Blog: Cases against the medical profession: an extended review: R (Young) v General Medical Council [2021] EWHC 534 (Admin), QBD

NIPC Law: Patents — The Appeal in Geofabrics v Fiberweb Geosynthetics: Geofabrics Ltd v Fiberweb Geosynthetics Ltd [2021] EWCA Civ 854, CA

Other recent publications

Fined for declining to make a “transgender cake”

According to Frank Cranmer writing in the latest Law & Religion UK blog roundup, In Scardina v Masterpiece Cakeshop, Inc (CO Dist Ct June 15, 2021), a transgender woman is suing Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, for his refusal on grounds of religious belief to bake her a birthday cake with a pink interior and blue exterior to reflect her transition from male to female. Writing about the case in the Law and Religion Australia blog Neil Foster notes that it will be familiar to anyone interested in ‘law and religion’ issues in recent years, since the same cake shop was previously sued, all the way to the US Supreme Court, for refusing to make a cake designed to celebrate a same-sex wedding. (See Foster’s earlier post, Colorado Wedding Cake Baker wins before US Supreme Court, June 5, 2018). “Sadly it seems that Mr Phillips will need to appeal this latest decision as well.”

Looking back over 10 years of HMCTS

In a post on the Inside HMCTS blog, acting CEO, Kevin Sadler reflects on what Her Majesty’s Courts and Tribunals Service has achieved in its first decade.

“The system we inherited was complex. It was designed by lawyers for lawyers, not for ordinary people on the street. So, from the outset, it was important to make accessing the justice system more straightforward. To ensure members of the public could navigate it, without always having to pay for someone to show them how. That’s been one of the main goals of the HMCTS reform journey.”

How will covid-19 shape the future of UK court reporting?

Many court reporters have made do with Skype calls to cover legal proceedings during the pandemic. Despite ropey connections and bad audio, this could help renew interest in the field, writes Jacob Granger on Journalism.co.uk

And Finally…

Tweet of the Week

is from Eleanor Sharpston, whose term as Advocate General on the ECJ was cut short thanks to Brexit, recording the very proper recognition of her contribution to Luxembourgeois life:

A very happy tweet: as a Luxembourger, I’m delighted and truly honoured to have been made a Grand Officier of the Ordre de Mérite by HRH Grand Duc Henri ahead of our National Day (23 June), in recognition of my work at the CJEU. My team share the credit! pic.twitter.com/ZaIXlddwaq

— Eleanor Sharpston (@akulith) June 19, 2021

By comparison, the UK government’s treatment of its own former judges on the court seems extremely churlish, as Joshua Rozenberg notes in a post on A Lawyer Writes: Snub for UK’s former EU judges.

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: Investigation, via Shutterstock.

Weekly Notes: legal news from ICLR, 21 June 2021