This week’s roundup of legal news and commentary includes cautionary tales from court, a pricking of passing-off pomposity, a papal intervention over a baby’s best interests, Brexit, and investigation into NDAs and sexual harassment.  (Separate post on legal education to follow.)

Courts

Cautionary tales about conduct

Two recent blog posts discuss issues around breaches of the strict rules governing conduct in relation to court proceedings.

In one case, a juror on a trial concerning sexual offences undertook internet research on whether compensation was available to victims of sexual assaults and shared the results of his research with the rest of the jury. Having pleaded guilty to two offences under the Juries Act the juror was sentenced to 7 months’ imprisonment suspended for 12 months with 100 hours of unpaid work. The case is reported as a news item on the website of 2 Hare Court chambers, one of whose barristers, Fiona Robertson, was defence counsel for the juror in question. See: Strong Warning Given as Judge Suspends Sentence for Juror Research

In the other case, a journalist lost her appeal against the decision of an employment tribunal (ET) to ‘strike out’ (dismiss) her discrimination claim against the BBC, after the tribunal found that she had been discussing her case during a break in her evidence. Striking out the claimant’s case, as the Employment Appeal Tribunal noted in Chidzoy v British Broadcasting Corporation UKEAT/97/17, is a draconian measure. It was appropriate here because it was the claimant herself, who was asking the court to rule in her favour on her claim, who was then undermining the court’s ability to trust her to behave properly in pursuing her case. An even more serious penalty might be committal for contempt of court, which could result in a sentence of imprisonment.

See, on the Transparency Project blog, Litigant’s claim struck out for discussing case during break in giving evidence – a cautionary tale

Court reporting: a crisis?

A report on Open Justice from the Chartered Institute of Journalists warns of “an unprecedented, and sustained, attack on the journalism profession, which has taken a toll on our ability to cover courts, and report on their function”. Its author is Tim Crook, Vice President of the CIOJ and Professor of Media Law at Goldsmiths. He outlines his concerns with coverage and access to proceedings at the Royal Courts of Justice, based on a visit with his students, and makes a number of proposals to open up justice to better public scrutiny. Although the recommendations are mainly targeted at the Judiciary and MOJ/HMCTS, Crook’s observations in the Appendix also point to issues with relying on the mainstream media to report the courts systematically.

You can read the full report here. A post on the Transparency Project blog examines and comments on his recommendations and some of his criticisms of the courts and judiciary, including the somewhat ambitious one that High Court judges should always write a one-page summary for the press of every judgment they deliver. See Journalism, Judges and Justice – a crisis in court reporting?

Featured image:  disused courtroom in Bradford City Hall, now much used for filming and occasionally for student moots. With thanks to Sarah Greenan for allowing us to reproduce it, from her Tweet. She also tweeted this:

Intellectual Property

Tat shop properly ‘passed off’ by ‘Prick’ teaser

This wholly unwarranted attempt to create a clickbait header has been prompted by an excellent post on Medium by Barbara Rich, barrister, on the case (among others) of Martinez (t/a Prick) & Anor v Prick Me Baby One More Time Ltd (t/a Prick) & Anor [2018] EWHC 776 (IPEC). The case was flagged up by another barrister, Gordon Exall, who commented: 

The judgment of HHJ Melissa Clarke (sitting as a Judge of the High Court) begins:

  1. This is a dispute between a tattoo artist and a retailer of cacti about the use of the trading name “PRICK”.

Ranging from Shakespeare’s sonnets to a solicitor squeezing lemons, the post by Rich also manages to consider the changing character of some of London’s edgier boroughs, their shifting population of hipsters, millennials and others, and, in a final twist of her inking needle, the reliable inaccuracy of newspaper law coverage of wills. See A “moron in a hurry” in Hackney . . . and other legal stories

Family

Alfie Evans case

In a case which echoes that of Charlie Gard in the harrowing experience of both the family and the medical profession and the harassing conduct of sometimes ill-informed interveners or would-be interveners in the dispute, the courts at every level have upheld the legality of withdrawing artificial ventilation from the infant Alfie Evans, who is suffering an incurable and fatal degenerative brain condition.

The Court of Appeal in Evans v Alder Hey Children’s NHS Foundation Trust [2018] EWCA Civ 805 affirmed the decision of Hayden J on 11 April 2018, and last week the Supreme Court refused an application for permission to appeal against that judgment. Now the European Court of Human Rights in Strasbourg has ruled an application in the case inadmissible. See the Law and Religion blog: ECtHR rules application in Alfie Evans case inadmissible

Meanwhile, after the Pope seems in some way to have become involved (see tweets), the Italian Government has apparently granted the baby Italian citizenship, with a view to his being “returned” to Italy for treatment and/or a prosecution brought for homicide against those who appear to be the target of mob displeasure here. 

https://twitter.com/balchinlawyer/status/988517450609233921

Employment

NDAs discussed at sexual harassment inquiry

Following last year’s revelations of sexual harassment in the entertainment and hospitality industries and the use of Non disclosure agreements to suppress public discussion of such matters, the House of Commons Women and Equalities Committee launched an inquiry into  Sexual harassment in the workplace on 13 February 2018.

The committee has since taken evidence from, among others, Zelda Perkins, former assistant to Harvey Weinstein, who last October broke her silence (despite the NDA she’d signed) – see, FT, Harvey Weinstein: how lawyers kept a lid on sexual harassment claims (£). Perkins gave evidence to the WEC committe on 28 March: see transcript. You can also Watch this evidence session via Parliament.tv

Last week the WEC Committee took further evidence from, among others, Richard Moorhead, chair of law and professional ethics at University College London, on the professional ethics of solicitors when drawing up and enforcing NDAs. Professor Moorhead said the Solicitors Regulation Authority needs to take a tougher line on clauses that are or could be void, and take unfair advantage in negotiation. A summary of his evidence is reported by Legal Futures: Ethics expert calls on SRA to take tougher approach to NDAs.

The committee have now published his written evidence.

Evidence has also been submitted by the Bar Council and by 11 KBW chambers. The latter includes a broader survey of other contexts in which NDAs and confidentiality agreements may be used, not all harmfully.

A couple of members of the public have also submitted evidence in writing, including a woman working in scientific research and another who worked in the civil service. It seems there can be few areas of working life not affected by sexism, harassment and discrimination of one sort or another. The committee will have its work cut out.

About the committee

There are 11 members of the committee, of whom three are men. One of the men is Philip Davies MP, who was the subject of a petition on change.org calling for his removal, on the grounds of his alleged unsuitability for the role. The petition was evidently not successful as he is still there. Perhaps those who elected him thought it might be good for him to learn something about matters on which his earlier comments were deemed (by those petitioning for his removal) to be inappropriate or ill-informed. In a recent interview in the Yorkshire Post he suggested the committee was all the better for having him on it:

“What I don’t like is when it gets bogged down in a load of politically correct clap-trap, that is why I went on the committee. It’s no good me complaining about these committees coming out with all this PC clap-trap if I’m not prepared to get stuck in myself.”

His questions in the evidence session involving Perkins seemed perfectly reasonable and polite. You can watch the next session on 25 April 2018 9:50 am.

Brexit

The Article 50 challenge

A CrowdJustice funded group have been seeking to mount an Article 50 Challenge, contending that while notice may have been given under article 50(2) of the Treaty on European Union, of an intention by the UK to leave the EU, no decision to do so has in fact been made under article 50(1). They say:

“In spite of what the Government claims, the Article 50 notification given on 29 March 2017 is invalid, and we are seeking to challenge its legality in the courts. If we are successful, the notification will be nullified, Brexit will be halted, and the decision to leave or remain will be back in the hands of Parliament where it belongs.”

David Allen Green, via his Jack of Kent blog, has considered the claim and found it wanting. His post, Does the “Article 50 Challenge” have any merit?, concludes that it does not. The High Court, having refused “on the papers” an application for permission to bring the claim, appears to agree, but there remains a renewed oral hearing on 12 June. As David Allen Green points out, this will be nearly two years after the referendum result and fifteen months after the Article 50 notification (which has already been the subject of intense scrutiny by the courts, all the way up to the Supreme Court, in the Miller case) was given.

His blog post examines the question from a constitutional point of view, concluding that there has indeed been a decision for the purposes of article 50(1) in accordance with the UK’s constitutional requirements. “There may be ways to stop Brexit”, he concludes, “but those ways are now political, and not by litigation. And that it how it should be.”

A second post, The Article 50 Challenge Responds, deals with the group’s response to his earlier post and links to case documents including the initial rejection of permission to claim.

In other Brexit news…

The House of Lords have voted to retain the European Charter of Human Rights after Brexit by way of an amendment to the EU Withdrawal Bill. As the Irish Times reports, the upper house has thereby given May her “third Brexit defeat in one week”.

The Windrush fiasco (see below) has drawn attention to the fragility (or unreliability) of the government’s promises to protect and respect EU citizenship rights post-Brexit, as the LSE Brexit blog points out: The Windrush Generation have been treated appallingly. EU migrants may expect an even worse deal

The same blog also asks, in another post, Have attitudes toward a second Brexit referendum reached a ‘turning point’?

In Brief

Free Movement interviews… Lucy Reed on family law blogging

The second in a monthly series of discussions with some of the UK’s leading legal bloggers, extracts from which are being added to the Free Movement training course Introduction to legal blogging. Lucy Reed, barrister, aka Familoo on Twitter, who writes the Pink Tape family law blog and founded the Transparency Project, discusses with Conor James McKinney how she began blogging, why it appeals, and what she thinks it can achieve.

The first in the series featured the barrister and human rights blogger, Adam Wagner. Coming up in May: Giles Peaker (aka Nearly Legal) a soliicitor who blogs about housing law.

Windrush fiasco – data protection excuse

Steve Peers on the EU Law Analysis blog explains why the actions of Home Office officials in deleting the landing cards of those who arrived on vessels such as the Windrush from the Caribbean, supposedly on the basis that they were obliged to do so under data protection laws, were not only based on dubious reasoning and logic, but also infringed their human rights: Windrush: Violating data protection law under the guise of protecting it

Death Penalty report

Amnesty International have published their annual report on the imposition of the death penalty around the world in the last year. Death Sentences and Executions 2017  notes a further decrease in the use of the death penalty. Among other positive developments:

“Two countries abolished the death penalty for all crimes and a third country became abolitionist for ordinary crimes such as murder. Several other countries took steps to restrict the use of this punishment. At the end of 2017, 106 countries had abolished the death penalty in law for all crimes and 142 countries had abolished the death penalty in law or practice.
These figures reaffirm, once again, the global trend towards abolition of the death penalty. Only an isolated minority of countries continue to resort to executions. Just four countries were responsible for 84% of all recorded executions in 2017.

Events

Law Reporting and Open Justice in a Digital World

Paul Magrath of ICLR gave a talk on the above subject to the Association of Women Solicitors in London, hosted at the University of Law, Bloomsbury Centre on 17 April. The slides will be available shortly, we hope. We’ll post a link when they are.

PIEL conference

On 6 April, Public Interest Environmental Law (PIEL) UK hosted their 12th annual conference under the heading ‘Environmental Litigation: Has the Green Revolution Reached the Courts?’ There is now a summary of the proceedings on the UK Human Rights Blog: Igniting the Green Revolution: some brain storming from environmental lawyers.

 

And finally… tweet of the week

Some Lawyer Thoughts…

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.