This week’s roundup of legal news and comment includes the match made in heaven, or at any rate Windsor – among other, less frothy content, such as forensic science, courts, coroners and end of life decisions in the family courts.

Royal Wedding

Legal commentary

Lest readers might think we had succumbed to the national hysteria over the nuptials of Prince Harry and his American bride, Meghan Markle, may we point out that there is actually a slender legal justification for this shameless entry, namely a post by the excellent Law and Religion UK blog, which we gratefully cannibalise.

For readers interested in the legal issues &c associated with today’s Royal Wedding, here are the relevant links in chronological  order:

For reference, the Order of Succession to the throne is here. Other relevant posts are:

Among the (legal) guests…

Meghan’s future

Naturally the day’s events have prompted some legal thoughts about the fairy princess and her new status. If it SUITS her, could she hang on to the day job ?

No doubt readers will have their own additional suggestions. (My Cousin Vinnie, for example, and on this side of the pond Rumpole of the Bailey and, going back a bit, Brothers in Law.) And while some are born British, and others have Britishness thrust upon them, there are some who achieve it by operation of law. We had heard (from the Law and Religion UK blog) that Meghan Markle wanted to acquire British citizenship. Naturally, we turned to the excellent immigration law blog, Free Movement, to get the lowdown. Turns out they have not one but two posts on the matter. Shameless! Here they are:

Nicholas Webb, Meghan Markle and the Immigration Rules on marriage

Colin Yeo, How quickly could Meghan Markle get British citizenship and what are the requirements?

Crime

Forensic science conference

In her annual report published in January, the Forensic Science Regulator, Dr Gillian Tully,  highlighted how continuing cuts to forensic science have been threatening criminal justice. Reading that report, with its account of the pressures on the system resulting from the highly publicised malpractice uncovered at Randox Testing Services (RTS), from the additional burdens placed on the system by rising levels of crime, terrorist attacks and the Grenfell Tower disaster, and from the continuing failure of many organisations in attaining the required quality standards, the picture that emerged was a gloomy one.

At this month’s Annual Conference, Dr Tully brought together experts from all fields of the system, looking at how the Regulator, the courts, the Crown Prosecution Service (CPS), police and professionals can work together to ensure compliance with the Regulator’s standards.

Speaking at the conference, the Head of Criminal Justice, Sir Brian Leveson, President of the Queen’s Bench Division, drew attention to the lack of funding, saying:

“There has undoubtedly been significant cost pressure on forensic science and legal aid budgets, which can have an impact throughout – it impacts on access to time and facilities for professional development, and can lead to reduced access to expert advice (of any sort, let alone quality assured) for the defence. It has undeniably led to a real problem in the provision of forensic services which has manifested itself in problems which you will all know about.”

He also highlighted how, over the last year,

“headlines that scream out words like “unreliable” and “manipulated” in relation to high profile problems with specific firms mean that the Regulator has never been more important or relevant in ensuring that the public and all involved in the process can trust the evidence presented in court.”

However, some things had got better:

“On the other hand, we have seen progress in the frameworks that surround expert evidence, whether the Regulator’s code or the Criminal Procedure Rules and practice directions. Ensuring compliance with these will mean that effective case-by-case scrutiny of scientific evidence is made easier.”

There was also a speech from Adrian Foster, Chief Crown Prosecutor, CPS Thames and Chiltern who also has responsibility for forensic science. He addressed, among other things, the role of the prosecutor in relation to the duty of the police to follow “all reasonable lines of inquiry”, which “includes evidence which both proves the guilt of the suspect and evidence which points to their innocence.” Unlike in Scotland, the prosecutors in England and Wales cannot direct police action, though they can advise the police and other investigators about possible lines of inquiry and evidential requirements.

He went on to discuss the issues prosecutors consider in determining whether there is a realistic prospect of conviction in any case, and in relation to evidence 3 particular issues, admissibility, reliability and credibility. All these were affected in relation to scientific evidence by the degree of compliance with quality standards and the Regulator’s Code of Conduct.

Read more:

Sir Brian Leveson speech at the Forensic Science Regulator Annual Conference

Adrian Foster speech at the Forensic Science Regulator Annual Conference

Family

End of life decisions: Alfie Evans

Few cases have rocked the public consciousness about “end of life” decision making as much as those of Alfie Evans, this year, and the very similar one of Charlie Gard last year. In both cases, widespread misunderstanding about the nature of the decision making has been aggravated by well meaning but misguided activism on the part of “interveners”, on religious or political grounds.

Despite the best attempts of commentators to clarify the issues in the Gard case last year, the misunderstandings arose again with the Alfie Evans case. Protesters gathered outside the hospital, Alder Hey in Liverpool on this occasion (it was Great Ormond Street Hospital in Gard’s case) besieging the medical teams and indirectly threatening the life-saving work of the hospitals, while hatred and abuse was directed via social media at anyone thought to be complying with what was accused of being “state-sponsored euthanasia” and the like.

As part of its mission to promote better public understanding of family law, the Transparency Project is publishing a series of pieces on the Evans case, including:

Polly Morgan: Alfie Evans, best interests, and parental rights

Allan Norman: The Abuse of Alfie’s Rights: A Gilded Death is Still a Death

Sarah Phillimore: Alfie Evans: Summary and useful links

See also: Robert Mickens, in La Croix International, The exploitation of Little Alfie

We would also strongly recommend reading the judgments in the case, before passing judgment on the judges, the hospital and the lawyers involved.

In re E (A Child) (Child on Life Support: Withdrawal of Treatment)  [2018] EWHC 308 (Fam) and [2018] EWCA Civ 550; [2018] WLR(D) 247

Evans v Alder Hey Children’s NHS Foundation Trust (No 2) [2018] EWHC 818 (Fam) and [2018] EWCA Civ 805 plus the UK Supreme Court’s brief reasons for refusing permission to appeal. (An application to the European Court of Human Rights was rejected as inadmissible, but no reasons are given.)

Evans v Alder Hey Children’s NHS Foundation Trust (No 3)   [2018] EWHC 953 (Fam) and [2018] EWCA Civ 984

 

Courts

Transforming Courts and Tribunals inquiry

The Commons Public Accounts Committee has launched an inquiry into the HMCTS Reform programme following a report of the National Audit Office  which found that the scale of proposed changes to the courts and tribunals presented a challenge, and HMCTS had so far made less progress than it original planned.

The Committee will ask representatives from HMCTS and the Ministry of Justice about the benefits the transformation will bring, whether enough progress has been made so the programmes deliver value for money, and how they can ensure all the organisations with a part to play are fully engaged with the programmes.

The Committee is inviting others to submit written evidence to this inquiry. The deadline for submissions is Thursday 31 May 2018.

The view from the Ministry

The CEO of HMCTS, Susan Ackland-Hood, who is managing the Reform programme, has been active both personally in travelling around the country and talking to people, and on social media, in engaging with court users and taking a lot of the incoming fire from those with complaints about the system.

Many of the problems are too fundamental to be solved overnight, but many others are probably susceptible to a fairly quick solution if the resources were made available. Given that the funds available are finite, priorities have to be set. It is probably fair to say that if all the immediate problems were resolved, there might not be much left for the longer term changes which are designed to transform the system into something that will, in future, work far more efficiently and cost-effectively. That, at any rate, is the vision.

Ackland-Hood has been addressing these concerns and this dilemma in a couple of recent posts on the Inside HMCTS blog.

In the first, entitled Shaping change around users increases efficiency too, she explains how the changes to the system are making it easier for litigants to use and thereby increasing efficiency. She writes:

“I should say at the outset that I don’t see digital change or modernisation as an end in themselves. They are means to achieve an end we all want – a courts and tribunals system that is more responsive, more accessible, and works better for both those who need it and those who work within it.

And, crucially, this isn’t about making a choice between efficiency and providing better services – for me, they are two sides of the same coin. By shaping what we do around the real people who use courts, tribunals and come to us for justice in other ways, we can cut down on the many wastes of time and effort that still bedevil the system.”

By way of example she cites the newly launched online divorce application process which we mentioned in last week’s edition of Weekly Notes – 14 May 2018 alongside the new online money claims service and the successful pilot of full video hearing in the Tax Chamber.

In the second, entitled Reform means getting the basics right too, she explains how they are helping to deal with “some of the particular day-to-day areas of concern raised with me by those who work within the system”. While cataloguing some of the ways in which money has been spent, she acknowledges that some things have to be given higher priority than others. For example, in the face of increasing demand on the family courts, “we have prioritised ‘sitting days’ for family law, to ensure that they are never the constraint on whether a case can be heard, if there is a judge available”.

If you are interested in attending the next HMCTS Reform Roadshow, it is being held at Freshfields, London on 24 May 2018.

Call for more research

The MOJ is also keen to plug the gaps in its knowledge by encouraging research by third parties, and has this month published a paper detailing its Areas of Research Interest. They say:

“We are keen to work in partnership to strengthen our strategic evidence base. We want to maintain and build on existing networks with external research communities and funders working in all areas of justice. We would like to develop new networks. We will also work collaboratively with other departments who have mutual areas of research interests to us, to ensure we are developing our evidence in an integrated and co-ordinated way.

Being transparent about our areas of research interest will, we hope, contribute to filling the knowledge gaps set out in this publication. Some of the strategic evidence needs set out here have been long-established, others are new. No doubt additional evidence needs will emerge. We are therefore committed to publishing updated areas of research interest for the Ministry of Justice.”

To participate, or find out more, the contact at MoJ is: researchsupport@justice.gov.uk

 

Chancery Division

Latest revision of Chancery Guide

The Chancery Guide, originally dated February 2016, has been further updated as at April 2018 and newly reissued. The Guide aims to provide practical information and should be used in conjunction with the Civil Procedure Rules (CPR). It does not itself have the status of rules or practice directions,  “But failure to comply with this Guide may influence the way in which the court exercises its powers under the CPR, including the making of adverse costs orders.”

Coroners

Queue-jumping or respect for religious sensibility?

In Weekly Notes – 5 March 2018 we noted that a decision of the Senior Coroner for inner North London, Mary Hassell, to impose a ‘cab rank rule’ in relation to burials – first come first served, regardless of religious differences, has prompted anger from faith groups. A claim for judicial review was supported the UK’s Chief Coroner, Judge Mark Lucraft QC, who described Hassell’s ‘cab rank’ approach to burials as “not capable of rational justification” and “not lawful”. There is a blog post explaining the case on RightsInfo.

In those judicial review proceedings, the Queen’s Bench Divisional Court ruled that the ‘cab rank’ policy was unlawful: see R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin); [2018] WLR(D) 273. The court said that

The fundamental difficulty with the defendant’s policy was that it did not strike a fair balance between the rights concerned at all. Rather, as a matter of rigid policy, it required the coroner and her officers to leave out of account altogether the requirements of Jewish and Muslim people in relation to early consideration of and early release of bodies of their loved ones. Reasonable people in society would not regard the need to grant expedition for some cases as “queue jumping” or otherwise unfair.

Following that ruling, the Chief Coroner has issued revised guidance: Report Of Death To The Coroner: Decision Making And Expedited Decisions (Guidance No 28)

See also:

Law Soc Gazette, Chief coroner issues guidance in wake of ‘cab rank’ ruling

Two posts on the Law and Religion UK blog:

Coroners and “cab ranks”: R (Adath Yisroel Burial Society)

Chief Coroner’s Guidance: Decision making and expedited guidance

 

Legal profession

Bar regulator to tackle unfair treatment of women

The Bar Standards Board has announced that it intends to work with the profession to make further progress in eliminating the discrimination, harassment and other unfair treatment of female barristers.  This follows the regulator’s publication in 2016 of its Women at the Bar report which found that women could face unfair treatment across a number of areas including harassment, discrimination, allocation of work, flexible working and parental leave. It also found that women at the Bar were reluctant to report unfair treatment and that there were issues with poor implementation and non-compliance with policies, and unsatisfactory levels of awareness of the Equality Rules.

You can read the Research exploring solutions to promote gender equality

There is also a Women at the Bar Action Plan

See also: dates and deadlines (below).

Dates and Deadlines

Behind the Gown – Ending harassment at the Bar

Inaugural meeting of Behind the Gown, the group set up to bring #MeToo to the legal profession.

Drinks and panel discussion at Bridewell Hall, 14 Bride Lane, EC4Y

When: 23 May 2018 at 6.30 pm

Cost: £10 on the door.

 

Lecture: Transparency and The Family Court Room

Jo Delahunty QC as Gresham Professor of Law, speaks about a topic which is on everyone’s minds. She says: “I have many questions about whether we have the balance between right in terms of transparency,secrecy and privacy:debate is needed views welcome.”

When: May 24, 2018 @ 6:00 pm – 7:00 pm

WHERE: Barnard’s Inn Hall, Holborn, London EC1N (Chancery Lane is nearest tube).

Law (and injustice) around the world

Australia

Witness’s face-covering veil banned

The Court of Appeal of New South Wales has ruled that a women witness could not give oral testimony in court while wearing a face-covering veil for religious reasons. Ms Elzahed was one of the plaintiffs in a civil action for damages for assault and battery, but she refused to remove her niqab when giving evidence. The judge refused to allow her to testify. That decision was upheld by the Court of Appeal in  Elzahed v State of New South Wales [2018] NSWCA 103 (18 May 2018). The judgment is published on the court website and also on BarNet Jade.

There is a case comment on the case on the Law and Religion Australia blog.

One of the cases referred to by their Honours is the decision of Judge Peter Murphy in the English case of R v D (R)  [2013] EW Misc 13 (CC), which in turn referred to a Canadian case, R. v. NS, 2012 SCC 72, [2012] 3 S.C.R. 726. A perfect illustration of how the common law jurisdictions consider and apply each other’s case law (not always in the same way, it has to be said).

China

Journalist attacked

Chinese authorities must investigate and bring to justice those responsible for an attack on TV reporter Chan Ho-fai in Sichuan Province, the Committee to Protect Journalists has said.

Chan, a reporter for the Hong Kong broadcaster i-Cable TV, was covering a memorial event at the Juyuan Middle School in Dujiangyan City to mark the 10-year anniversary of Sichuan earthquake. The Juyuan Middle School collapsed in the earthquake.

The earthquake and its aftermath are politically sensitive in China. Huang Qi, founder of the human rights news website 64 Tianwang, helped Sichuan earthquake victims’ families expose and report on the many poorly constructed school buildings that contributed to the high death toll. Huang was arrested on November 28, 2016, for “leaking state secrets to foreign entities” and remains in jail.

The artist Ai Wei-Wei has made a number of artworks commemorating the earthquake and its victims, including an installation at the Royal Academy in London in 2015 (see Weekly Notes – 18 September 2015. He made himself unpopular with the Chinese government by investigating the earthquake himself, where officials simply wanted it forgotten about.

And finally… GDPR

Fed up? So are we. When will it all stop? asks Jon Baines on his Information Rights and Wrongs blog.

And to mark the impending deadline our Tweet of the Week is:

HT Privacy Matters  for sharing that.

 

That’s it for now. Thanks for all your retweets and suggestions. We’ll have more content next week.

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.