This week’s roundup of legal news and commentary includes courts and legal services, legal aid, immigration rules, prisoner votes and some news from foreign parts. But first a play of cards as we try to game the system with a joker in the pack.

Gaming 

When is a card game not very sporting?

A pair of recent cases throw the spotlight on card games. In one case, the European Court of Justice ruled that Bridge, a card game played in teams of two, is not a sport. In the other, the Supreme Court decided that a player of the game punto banco could “cheat” without necessarily intending to be dishonest. 

In English Bridge Union Ltd v Revenue and Customs Commissioners (Case C-90/16) ECLI:EU:C:2017:814 the ECJ ruled, on a reference by the Upper Tribunal [2015] UKUT 401 (TCC), that 

“an activity such as duplicate bridge, which is characterised by a physical element that appears to be negligible, is not covered by the concept of ‘sport’ [within the meaning of Article 132(1)(m) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax]”

The decision reversed the recommendation of the Advocate General, Maciej Szpunar, who had recommended that sport be understood as an activity involving the “training of mental or physical fitness in a way that is generally beneficial to the health and wellbeing of citizens”.

Playing the card name pun game, the Guardian went with with Not the real deal: EU court rejects claim that bridge is a sport

The New York Times reported it more drily under the title Is Bridge a Sport? E.U. Court Says No and reported that

“The bridge union said in a statement that it was ‘very disappointed that the VAT burden which makes it harder to get more people playing this fantastic pastime will not be removed.’”

In Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67 the Supreme Court held (dismissing an appeal from the decision of the Court of Appeal [2017] 1 WLR 679) that “cheating” at the card game of Punto Banco Baccarat, sufficient to breach an implied term in the contract between player and casino and render any gains unenforceable, did not require proof of conscious or subjective dishonesty on the player’s part. The cheating in question involved something called “edge sorting”. As well as the full judgment, you can read the Supreme Court’s press summary. 

There’s also a Case Comment on the UK Supreme Court blog, which points out that the decision, by doing away with the second limb in the test for dishonesty in  R v Ghosh [1982] QB 1053 has the effect of ending what the judgment called the

‘unprincipled divergence between the test for dishonesty in criminal proceedings and the test of the same concept when it arises in the context of a civil action’ 

The effect of this decision on the criminal law is profound. Wherever a defendant might previously have escaped conviction by reference to their own personal belief about what reasonable people thought, he or she now has no way out. A whole host of potential defences based on cultural differences, widely accepted practices or acting for the benefit of others have been rendered futile at a single stroke.”

Courts

HMCTS Reform

A recent post on the Inside HMCTS blog, Susan Acland-Hood sets out our priorities for the next phase of courts and tribunals reform , discusses the next phase of the Reform programme. She explains what this means in practice: 

“That means taking the things we’ve begun to develop so far and building them out further – so, for example, we have got a system that allows online applications for divorce; in the next stage, we need to improve it by moving away from ‘print and post’; expand it from a limited ‘private beta’ to a ‘public beta’ available to everyone; and add the next component, which allows for financial remedy to be dealt with through the same system, just as easily. 

It also means starting a new set of projects – for example, delivering digital systems to support public family law cases from end to end. 

We’ll be examining the on-going Reform project in more detail in separate posts on the ICLR blog, following on our earlier coverage. 

Legal Aid

Cuts to be reviewed

After years of criticism from the judiciary and legal professions, the government is finally going to review the impact of its cuts to legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). 

The review should take place in “the very near future”, the justice secretary told MPs at the  justice select committee chaired by Bob Neill MP last week. 

Emily Dugan, who reported the announcement in BuzzFeed News, had earlier interviewed a senior  family law judge, His Honour Stephen Wildblood, about the effect of the cuts on the work in his court and the amount of help he needs to give litigants in person (LiPs) who can’t afford representation. 

In another article, Dugan, who has made a point of covering the legal aid crisis in BuzzFeed News, explored what it being a LiP was like: A Record Number Of People Are Representing Themselves In Court – This Is What It’s Like

This weekend’s Bar Conference (see Dates & Deadlines below) will feature an extra session on the programme, under the title Who cares about legal aid? Announcing the addition, Andrew Langdon QC, chair of the Bar, said: 

“I hope it will provoke discussion, reaction, media coverage and some new thoughts about how we press the case for a change of policy by government given the imminent review of LASPO 2012.  

Given his recent substantial work in this area, I believe we should use the opportunity of the Bar Conference to listen to Sir Henry Brooke CMG who, as many of you know, in addition to providing a history of Legal Aid, compiled and then analysed the evidence considered by the Bach Commission in its recent report ‘The Right to Justice’ (see Appendices 1-6).”

The latest issue of Counsel magazine includes a powerful Chair’s Column by Langdon in which he explains the short-sightedness of the legal aid cuts, given the additional public cost burden thereby caused in other areas, such as health, housing and welfare. Early legal advice, properly funded, he says, is a case of a stitch in time saving nine. Judges have been saying this for years; now, perhaps, MPs are starting to listen. 

But he also warns not to present a campaign on behalf of lawyers, and the undeniably woeful effect of cuts on them, since such arguments “cut no mustard in the court of public opinion”. Any change in the national mood will come from “rubbing in the shame in the disparity that currently exists, and is worsening, between those who can afford advice and representation and those who cannot”. He draws attention to the hollowness of the government’s current “Legal Services are GREAT” promotional campaign when only the rich can afford to use them. 

Immigration

Review of Rules announced

The Law Commission is to conduct a review of the Immigration Rules, according to the Home Secretary, Amber Rudd, giving oral evidence to the Home Affairs Select Committee on 17 October. Colin Yeo reported the fact on the Free Movement website, disclosing that Law Commission staff had already begun meetings before then “including with me”. 

Rudd answered a question about the complexity of the existing rules by saying: 

“It is incredibly important—I share your frustration—and this is a personal mission of mine to make sure that we simplify the immigration so that your constituents and mine can use it in a more user-friendly way and that it can just be clearer for people where they can and where they can’t apply.”

The rules, which are formally cited as  Statement of Changes in Immigration Rules (1994) (HC 395) and have been amended “thousands of times” says Yeo, “are now burdened with multiple appendices and large stretches of rules with non-sequential ‘numbering’.”

He cites an earlier post in which he expressed his exasperation at their Kafkaesque impenetrability: 

“The authors appear to have obtained PhDs in Illogicality from the University of Illogistan and then undertaken extensive vocational and professional training in the Art of Demented Bureaucracy. Either that or the UK Border Agency want to make immigration law so incomprehensible to the public, lawyers and even to UKBA staff that no-one will ever be admitted to this country ever again.”

Human rights

Prisoner voting

A small step but a significant one. A limited number of prisoners will be allowed to vote, according to a report in the Sunday Times over the weekend. The relaxation of a long-standing ban would only apply to prisoners sentenced to a year or less in prison and who are eligible for day release. This would end the UK’s total ban on prisoners voting, says RightsInfo.

“The issue goes back to 2005, when the Court ruled in the case of John Hirst. Hirst successfully argued that the ban on prisoners voting violated the right to free and fair elections, which is protected under Article 3 Protocol 1 of the European Convention on Human Rights.

The Court said that the right to vote is “crucial to establishing… an effective and meaningful democracy governed by the rule of law“. The Court stated that the blanket ban on prisoner voting was an “automatic and indiscriminate restriction on a vitally important Convention right”. It declared that the UK’s ban violated prisoners’ rights to vote.”

In a thread on Twitter, barrister Matthew Scott explained why, given how few prisoners are likely to benefit from the change,

“it’s an announcement that changes virtually nothing. Some might call it just a wee bit cynical. Others might say: that’s politics.”

That judgment may itself seem a tad cynical. The point is that the government has moved, and whatever the flack in the generally anti-prisoner (and thereby anti-rehabilitation) tabloid media, the opportunity is there to move a little further.

Dates & Deadlines

Annual Bar and Young Bar Conference

The theme of this year’s conference is “One Bar: Threats, opportunities and strengths in an age of change”  #OneBar17

The conference takes place at the Westminster Park Plaza Hotel, London, this Saturday, 4th of November. Booking: https://thebarcouncil.sym-online.com/registrationforms/abc2017/done/

Teflon Corbyn? Press demonization and the waning power of the tory tabloids

Public Lecture in which Nicholas Jones, Honorary Professor at Cardiff University’s School of Journalism, Media and Culture (JOMEC), former BBC news correspondent, and author will address recent news coverage of UK Labour and its leader Jeremy Corbyn.

The lecture will take place at Small Chemistry Lecture Theatre (rm. 1.122), Main Building, Park Place, Cardiff CF10 3AT on 21 November 2017, 19:30—21:00.

Booking details via Eventbrite.

Should Privacy Trump Accountability?

Debate hosted by the Transparency Project to mark the launch of its Guidance Note: Publication of Family Court Judgments. Chaired by His Honour Judge Stephen Wildblood QC.

The debate will take place at The Station, Silver Street, Bristol BS1 2AG on Tue 5 December 2017, 18:00 – 19:30.

Tickets via Eventbrite

 

Law (and injustice) from around the world

America

Trump-Russia inquiry

Sensational developments (possibly the first of many) in the Mueller investigation.

First, George Papadopoulos, a foreign policy advisor for Donald Trump’s presidential campaign, has pleaded guilty to an offence of lying to federal agents working for special counsel Robert Mueller as part of his investigation into the campaign’s possible collusion with Russia.

You can read the stipulation (containing statement of the offense) from the US District Court for the District of Columbia via Lawfare, George Papadopoulos Stipulation and Plea Agreement

Second, Paul J Manafort, Jr, who served as Trump’s campaign manager and Richard W Gates III, a business associate, have been indicted in the same investigation, charged with money laundering, tax evasion, fraud and failing to register as agents of foreign interests.

You can read the indictment on Lawfare

See also:

The Guardian Ex-Trump campaign aide pleads guilty to lying to agents in Russia inquiry

CNN Ex-Trump campaign adviser pleads guilty to making false statement

Lawfare: Seven Frequently Asked Mueller Indictment Questions for Which We Don’t Have the Answers

Myanmar

Rohinga refugee crisis deepens

While humanitarian groups have criticised the apparent lack of leadership of Nobel laureate Aung San Suu Kyi over the exodus of Rohingya refugees from Myanmar into neighbouring Bangladesh since August this year, and others have pointed out that despite her return from exile she still has little effective control over a government largely still dominated by the military, the situation was further complicated over the weekend by massive demonstrations by Buddhist nationalists protesting against the return of the refugees.

The Hong Kong based Buddhistdoor Global platform reports:

“According to government officials, returning Rohingya will have to prove that they are Myanmar residents, however few refugees are thought to be in possession of such documentation, mainly because Myanmar does not recognize the Rohingya as one of its official ethnic groups, instead classifying them as stateless foreign migrants or illegal Bengali migrants from Bangladesh, even though many families have lived in Myanmar for generations.”

See also, in the FT: Myanmar’s Buddhists protest against return of Rohingyas

Spain

Catalonia – constitutional crisis

Following a declaration of direct rule from Madrid, in response to an unconstitutional declaration of independence by the Catalan parliament, the Spanish government has now said it would welcome the participation of sacked Catalan leader Charles Puigdemont in new elections.

Over the weekend a large pro-unity rally took place in Barcelona, waving Spanish flags, singing the national anthem and expressing opposition to Catalonian independence.

The BBC reports that

“Before Madrid took over the Catalan government, the region had one of the greatest levels of self-government in Spain. It has its own parliament, police force and public broadcaster, as well as a government and president, though those have now been dismissed.

But

“Many Catalans feel they pay more to Madrid than they get back, and there are historical grievances, too, in particular Catalonia’s treatment under the dictatorship of General Franco.”

Tweet of the Week

contains a photograph taken last week in Atlanta, Georgia, USA where Paul Hastings, Account Manager, and the author were representing the ICLR at the annual conference of the International Association of Law Libraries (about which there will be more blog posts in due course). The Paul Hastings in the photograph is, of course, nothing to do with the other Paul Hastings in the photograph. Glad to have cleared that up.

That’s it for now. Thanks for all your tweets, many of which provide source material for which we are very grateful. We’ll try to plug all our borrowings. If you like the blog, you can sign up below for email alerts.

This post was written by Paul Magrath, ICLR blog editor, and does not necessarily represent the views of ICLR as an organisation.