Probate

Pretty vacant?

The Guardian has “revealed” what all lawyers know, viz that if you don’t make a will, and there is no one to whom your property can pass under the existing law of intestacy, then it is “bona vacantia” (vacant goods) and goes to the Crown. (If you didn’t know this, you could have looked it up in our ever-growing Glossary of legal terms used in law reports.)

In most of the country, this means it goes into the gaping maw of the Treasury, to be spent or misspent according as the beancounters in bowlers shall direct. There is a Bona Vacantia Department for this purpose. But in certain parts of the country, including Lancashire, parts of Merseyside, Greater Manchester, Cheshire and Cumbria, the deceased’s vacant goods go more directly to the Crown in the form of the Duchy of Lancaster, which turns out to have been using some of the money for its own rather than public benefit, although a lot does appear to be used for charitable purposes. According to The Guardian (King’s estate facing questions over £14m in ‘bona vacantia’ not donated to charity):

“The duchy has for decades said that, after it collects bona vacantia funds and deducts certain costs, the proceeds go to charities, such as the charity that funds the [Savoy] chapel. However, the Guardian has revealed that a significant portion of bona vacantia funds are secretly being spent on renovating properties owned by the king that are rented out for profit by his estate.”

The sums involved do not seem extravagant, and some of the commentary has betrayed a slightly unhinged level of republican suspicion. (The Guardian headline read: “King Charles secretly profiting from the assets of dead citizens”.) This is not a conspiracy of invisible lizards, chewing on commoners’ corpses. It is just an ancient legal custom which also applies to the assets of dissolved companies, if no one can claim them. Nor is this instance of it particularly secret, since much of the information in the Guardian’s reporting came from scrutinising the Duchy’s published accounts.

Bona vacantia also mentioned in hundreds of judgments available on ICLR.

And of course, where there’s a will there’s a way… (to avoid this). As Obiter J points out in a handy explainer on Law and Lawyers: Bona Vacantia ~ Get a will drawn up !

Crime

ONS survey results

The latest figures from the Office of National Statistics’ Crime Survey for England and Wales (CSEW) for the year ending June 2023 showed that total crime decreased by 10% (to an estimated 8.4 million offences) compared with the year ending June 2022, mainly caused by decreases in fraud and criminal damage offences. This follows the long-term downward trend and recent falls since the beginning of the coronavirus (COVID-19) pandemic, with total crime 18% lower than the year ending March 2020.

However, computer misuse increased by 33%, and while homicides decreased by 10%, offences of robbery and offences involving firearms or knives increased (albeit to a lesser extent).

These latest CSEW figures are based on interviews conducted between July 2022 and June 2023, reflecting crimes that occurred as early as July 2021 and as recently as May 2023. The figures should be interpreted with additional caution, says the ONS, by reason of the comparatively smaller amount of data and lower response rate. Indeed, they say that “CSEW estimates have been temporarily suspended of their National Statistics status while we assess data quality since the pandemic”.

Bias in Magistrates’ courts

A recent report by the organisation JUSTICE suggests that magistrates’ courts’ may be sending thousands of people to prison to await trial without giving proper legal reasons for these decisions.

One in five people in prison are being held awaiting trial or sentencing — up from one in nine in 2019. This jump — largely caused by increasing numbers in custody awaiting trial — has been a key driver of prison overcrowding. But, until now, a serious lack of public data has obscured its causes.

Remand Decision-Making in the Magistrates’ Court: A Research Report (November 2023) is based on the observation of over 740 hearings across England. It finds that “most decisions to either jail people awaiting trial or add conditions to their bail did not follow the correct legal processes”. The problems include the fact that:

“Decision makers rarely provided reasons for their decisions, despite the requirements in the Bail Act and Criminal Procedure Rules that they do so. This failure makes it difficult to scrutinise remand decisions to determine why and to what extent custodial remand is being overused. Disparities in outcomes, particularly for non-White defendants, foreign national defendants, defendants appearing via video-link and in a secure dock, and defendants lacking representation, must also be noted. Indeed, such disparities suggest biased decision-making driven by perceptions of risk, likely exacerbated by a lack of diversity amongst decision makers.”

As with lack of data and scrutiny in other areas of the justice system, the problem is not a new one:

“In 2017, the Lammy Review highlighted the need to address data gaps in the magistrates’ courts, particularly regarding remand decisions. Our results further highlight the need for greater scrutiny of decision-making in the magistrates’ courts and racial disparities arising from these decisions.”

Inquiries

Post Office Horizon IT inquiry

There continue to be eye-opening and jawdropping revelations in the evidence being given in this inquiry, which you can read about via Nick Wallis’s excellent blog (and, if you sign up, his exclusive secret emails) and also from Prof Richard Moorhead.

A recent post on the latter’s blog concerns Warwick Tatford, Prosecuting Counsel in the trial of Seema Misra, when questioned in the Inquiry about his failures in relation to expert evidence relied on by the Post Office in its prosecution, and failures of disclosure to the defence. See The sorry tale of Warwick Tatford.

“I was Prosecution Counsel at the head of a difficult disclosure exercise that failed.” He had, he said, “Over the years… …thought repeatedly about whether there was something different I could have done, whether I should have asked more or different questions, whether I should have insisted on an independent expert.”

And later: “I apologise unreservedly for what happened. I hope it can be remedied in some way.”

Wallis in his newsletter admits that

“I found myself feeling vaguely sorry for Tatford. Whereas a lot of the Post Office witnesses have been guarded and defensive to the point of being obtuse, Tatford clearly wanted to help and wanted to learn. In doing so he learned that he may well have made several career-limiting admissions.”

He is less forgiving of Cath Oglesby, the Post Office area manager who sacked Lee Castleton, whose evidence to the inquiry he describes as “bewildering” and compares to Humpty Dumpty declaring that, when he uses a word, it means just what he wants it to mean — no more and no less. In essence, Castleton was forced to sign documents saying accounts were accurate even if he disputed them, on the basis that they would be corrected later — it would all come out in the wash — only they weren’t, and it didn’t, and he lost a lot of money and his job and was then bankrupted. Oglesby was the one who sacked him. See The Magic Signature.

John Hyde, in the Law Society Gazette, is also covering the inquiry and reports on the revelation by Post Office investigator Diane Matthews, who had interviewed sub-postmistress Janet Skinner, that she had told the Post Office lawyer Juliet McFarlane she did not believe Skinner had stolen any money and there was no evidence to prove it. “Matthews said she ‘didn’t really agree’ with the charges against Skinner but that ‘it was a case of “she’s the legally trained person who makes the decision”.’ See Post Office lawyer was told case against jailed woman was flawed

Another blatant injustice affects sub-postmistress Teju Adedayo, who had her criminal conviction quashed at Southwark Crown Court in May 2021, but has been unable to get the compensation she feels she is due. This is because the Post Office says she is a “public interest” case. Nick Wallis considers this categorisation to be fundamentally unfair, and says in Teju’s case it was exposed as a false premise. See The Post Office vs Teju Adedayo.

Meanwhile Joshua Rozenberg, commenting on two further references by the Criminal Cases Review Commission, asks Can dead postmasters be cleared? The question is whether, under the Criminal Appeal Act 1995, a posthumous appeal can be referred to the Crown Court, where the defendant pleaded guilty.

Commentary

Recent judicial speeches

Lord Justice Popplewell,Judging Truth from Memory: The Science

Talk given by Popplewell LJ to COMBAR on 7 November 2023. He asks

“5. … if the conflicting evidence is mostly being given honestly, how is a judge or arbitrator to choose between different accounts? How can advocates convincingly persuade the tribunal to accept one version over another?

6. The theme of this talk is that the answer lies in the science of memory, and the different reasons and mechanisms by which witnesses come to give honest but mistaken evidence.”

He then goes into this in some detail, with diagrams and charts. It’s fascinating.

The Chief Coroner:Death and Taxes — the past, present and future of the coronial service

In this recent lecture the Chief Coroner, Judge Thomas Teague KC discusses what he described as a largely “forgotten service”. He begins by recalling the election, in November 1875, of an auctioneer as county coroner for Suffolk. At least he could legitimately have used a gavel! However, this system of selection was duly replaced by a more formal appointment process under reforming legislation. The lecture was timed to mark the tenth anniversary of the most recent such statute, the Coroners and Justice Act 2009, which was not implemented until 2013. There is a more detailed commentary on the speech in Joshua Rozenberg’s post, A forgotten service.

Lady Chief Justice:Civil Justice Council’s 12th National Forum

Baroness Carr of Walton-on-the-Hill discusses the work of the Civil Justice Council and its annual forum, in guiding and informing the development of the civil justice system over the last 12 years, including the HMCTS Reform programme and the updating of the Civil Procedure Rules to improve access to justice. She included a reminder, perhaps for the government, of its importance to society:

“Our civil justice system should in this way be understood to play three key roles in society: it helps prevent disputes by guiding behaviour; it helps parties resolve disputes consensually, without the need for them to resort to the civil courts; and, in the last resort, it determines disputes by adjudication.”

Other recent items

Verfassungsblog: When Law Fails Us, by Anja Bossow

Discusses the increasing tendency of supposedly democratic governments, including the UK in the wake of the Supreme Court’s Rwanda scheme judgment, to treat the rule of law as an obstacle to good government, and something to be ignored or dismantled if it gets in the way of executive intentions.

Mishcon de Reya: The AI Safety Summit is over: what next?

Summary of the four key risks discussed at the recent AI Safety Summit held at Bletchley Park and culminating in the signature of the Bletchley Park Declaration by 28 world leaders in attendance, with a general agreement that an international, cooperative approach should be adopted to manage AI risk. The four risks are:

  • Risks to global safety from frontier AI misuse;
  • Risks from unpredictable advances in frontier AI capability;
  • Risks from loss of control over frontier AI; and
  • Risks from the integration of frontier AI into society.
Inforrm’s Blog: United States: Supreme Court to consider giving First Amendment protections to social media posts, by Lynn Greenky

The US Supreme Court has agreed to hear five cases that collectively give the court the opportunity to reexamine the nature of content moderation — the rules governing discussions on social media platforms such as Facebook and X, formerly known as Twitter — and the constitutional limitations on the government to affect speech on the platforms (which is currently not protected by the First Amendment of the US Constitution). Greenky discusses the implications.

UK Labour Law blog: Blurred Boundaries: Rescuing Workers’ Privacy in the Process of Searching Data and Devices— by Virginia Mantouvalou and Michael Veale

Commenting on the recent examination of government WhatsApp messages in the Covid Inquiry, this post considers the risks to employees of using social media, and how technology has reconfigured the boundary between home and the workplace leading to several serious threats to workers’ privacy.

Brett Wilson Media and Communications Law Blog: Is it safe to use AI for legal research? Not yet

The authors experiment with generative AI chat bots such as Chat GPT, Google Bard and Bing AI to see if they can answer basic legal research questions. The results are a bit less than overwhelming, which accords with our own research (eg wrong or even fake citations, etc.) The blog concludes, not very surprisingly, by suggesting that “At the moment at least, the only safe option when it comes to legal advice is to continue to consult a specialist solicitor.”

But, just for the record, the problems identified are associated with generative AI, which is basically so advanced it can think for itself and make stuff up. Other forms of AI, involving natural language processing and machine learning, are less risky, albeit not perfect, including Case Genie, the AI-driven search functionality on ICLR.4, which allows a user to upload a piece of text for analysis and recommends relevant or similar cases.

Recent case summaries from ICLR

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

DAMAGES — Personal injuries — Periodical payment order: WNA v NDP, 22 Nov 2023 [2023] EWHC 2970 (KB); [2023] WLR(D) 491, KBD

FREEDOM OF INFORMATION — Disclosure — Exemption: Montague v Information Comr (Department for International Trade v Information Comr), 22 Nov 2023 [2023] EWCA Civ 1378; [2023] WLR(D) 490, CA

HEALTH AND SAFETY — Employer’s duty — Coronavirus pandemic: Shanks v Lothian Health Board, 24 Nov 2023 [2023] EAT 148; [2023] WLR(D) 495, EAT(Sc)

JUDICIAL REVIEW — Practice — Disclosure: R (IAB) v Secretary of State for the Home Department, 17 Nov 2023 [2023] EWHC 2930 (Admin); [2023] WLR(D) 485, KBD

NEGLIGENCE — Causation — Parkinson’s disease: Holmes v Poeton Holdings Ltd, 22 Nov 2023 [2023] EWCA Civ 1377; [2023] WLR(D) 486, CA

NEGLIGENCE — Duty of care — Public authority: FXJ v Secretary of State for the Home Department, 20 Nov 2023 [2023] EWCA Civ 1357; [2023] WLR(D) 477, CA

PENSIONS — Pension scheme — Construction: Campbell v NHS Business Services Authority, 16 Nov 2023 [2023] EWCA Civ 1351; [2023] WLR(D) 476, CA

ROAD TRAFFIC — Parking — Penalty charge notice: R (Transport for London) v London Tribunals (Environment and Traffic Adjudicators), 17 Nov 2023 [2023] EWHC 2889 (Admin); [2023] WLR(D) 488, KBD

SOLICITOR — Costs — Assessment: Boodia v Slade (trading as Richard Slade and Co Solicitors), 21 Nov 2023 [2023] EWHC 2963 (KB); [2023] WLR(D) 489, KBD

TRUSTS — Charitable gift — Application cy-près: Attorney General v Zedra Fiduciary Services (UK) Ltd, 15 Nov 2023 [2023] EWCA Civ 1332; [2023] WLR(D) 483, CA

Recent case comments on ICLR

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

Panopticon blog: “Exemption means Exemption” doesn’t cut it for the Court of Appeal: aggregation of exemptions is permitted under FOIA: Department for Business and Trade v Information Commissioner & Anor [2023] EWCA Civ 1378, CA

Free Movement: Upper Tribunal failed to properly assess whether error of law was material in asylum appeal: ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282, CA

Free Movement: Late evidence from the Home Office can be admitted in an appeal where the appellant was aware of it: Kanhirakandan v The Secretary of State for the Home Department [2023] EWCA Civ 1298, CA

UK Human Rights Blog: Is an Artificial Neural Network a computer programme ineligible for patent protection? Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2023] EWHC 2948 (Ch), Ch D

Guildhill Chambers: Back to the drawing board for patient autonomy? Informed consent following McCulloch: McCulloch v Forth Valley Health Board [2023] UKSC 26; [2023] 3 WLR 321, SC(Sc)

Free Movement: Court of Appeal dismisses appeal on interpretation of nationality law: Rex (Murugason) v Secretary of State for the Home Department [2023] EWCA Civ 1336; [2023] WLR(D) 475, CA

Free Movement: Court of Appeal says deportation of mother of British child not “unduly harsh”: FN (Burundi) v Secretary of State for the Home Department [2023] EWCA Civ 1350, CA

Landmark Chambers: High Court criticises redaction of junior civil servant names in government disclosure: R (IAB) v Secretary of State for the Home Department [2023] EWHC 2930 (Admin); [2023] WLR(D) 485, KBD

Local Government Lawyer: When is a resignation not a resignation? Omar v Epping Forest District Citizens Advice [2023] EAT 132; [2023] WLR(D) 454, EAT

Electronic Immigration Network: Court of Appeal: ‘Very significant obstacles to integration’ is an objective test: NC v Secretary of State for the Home Department [2023] EWCA Civ 1379, CA

And finally…

Tweet of the week

Is an example (surely not real?) of florid legal style from Florida — a reminder of the need for courteous courtliness in court, please.

That’s quite enough rude pleading. Thanks for all your tweets and toots and threads. May your blue sky remain unclouded.

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.