Afleveringen
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Ariel, the magician’s “trusty spirit”, speaks with Prospero in The Tempest about magic bringing about a “sea change”, a transformative power creating something “rich and strange”.
As befits a lawyer who read English at Oxford, Jonathan Kewley drew on Shakespeare to describe artificial intelligence in a lecture earlier this month. The solicitor, who was awarded the title of partner of the year at the British Legal Awards last month, is co-head of the Clifford Chance tech group, a cross-disciplinary team of more than 600 lawyers advising on tech risk and opportunity.
“When I use AI in my daily life,” said Kewley, “its power and potential often leaves me in a state of shock and awe. Be in no doubt: we are currently witnessing something quite extraordinary. We’ve evolved through the Stone Age, the Iron Age. We now find ourselves in the Intelligence Age.”
But Kewley had a warning for us all. “This modern magic can turn dark,” he said:
At the end of The Tempest, Prospero relinquishes his magic and releases his spirit assistant Ariel. “I’ll break my staff,” he says. “I’ll drown my book.” But we cannot walk away from AI now.
Let’s not sleep-walk into this. Let’s shape the future of AI by putting humans at the centre. Wake up, embrace the opportunity with our eyes wide open. The real magic rests in getting the balance right.
Kewley had been invited to speak at the Central Criminal Court by Alderman Gregory Jones, the first practising KC to serve as one of the City of London’s two sheriffs. His lecture and the discussion that followed were part of the City and Legal programme of events chosen to promote the Old Bailey as an international forum for exploring the rule of law and the interaction between the law and business.
I must declare an interest: Jones has invited me to speak at the court in February about freedom of speech and transparency. Other discussions in the new year will cover crypto-assets, smarter financial regulation, infrastructure and climate change.
As Kewley said, AI can also be dangerous — just as the first motor cars were created without safety in mind. It is leading to errors in hiring and firing staff in the workplace. It could cause a flash crash in the financial markets. It can even lead to deaths. But, as a solicitor, Kewley deeply believed in the power of law to keep this magic in check.
That’s what we discussed in a fascinating episode of A Lawyer Talks. My regular podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.
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How can we reduce trial delays of two or even three years in the Crown Court?
Yesterday, I reported a suggestion from the director of public prosecutions Stephen Parkinson that was promptly skewered in the comments section by Ian Kelcey and Tom Crowther.
Parkinson had also suggested that we might explore some ideas that had recently been backed by Alex Chalk KC, the former Conservative justice secretary. These would involve limiting the right to jury trial — a radical move, but one that might find favour with no less a figure than the lady chief justice of England and Wales, Baroness Carr of Walton-on-the-Hill.
We know from the National Audit Office report yesterday that the Conservative government’s prison building programme will not produce the prison places that are said to be needed. One solution offered by the Ministry of Justice is a sentencing review that’s intended to ensure prisons do not run out of space again. But that review has a fundamental flaw, as Chalk told me when I went to see him at the chambers from which he now practises.
You can hear my interview with the former justice secretary — and a brief comment from Parkinson — in the latest episode of A Lawyer Talks.
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Zijn er afleveringen die ontbreken?
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A bill that would make it illegal to create or solicit sexually explicit or intimate images without the consent of the people in them will be considered by the House of Lords next week.
The bill would cover deepfake content, where photos or video are digitally manipulated to make a person appear to be in an intimate situation.
Baroness Owen of Alderley Edge, who was the youngest member of the House of Lords when she was nominated in Boris Johnson’s resignation honours list in July last year, has sponsored the Non-Consensual Sexually Explicit Images and Videos (Offences) Bill as a private member’s bill. Its second reading debate is scheduled for 13 December.
Owen explained the purpose of her bill in a note to House of Lords library:
The problem of sexually explicit deepfakes is one that is inherently sexist and rapidly proliferating. They have been described as the new frontier of violence against women. The content is created using generative AI and can be made in a matter of seconds with easily downloadable nudification apps or online platforms. Whilst it is illegal to non-consensually share sexually explicit deepfakes online, it is still not illegal to create them in the first place.
The bill was prepared with the help of Clare McGlynn KC (hon), a solicitor and professor of law at Durham University (pictured in the graphic above) who specialises in the legal regulation of sexual violence, pornography and online abuse.
For the latest episode in my podcast A Lawyer Talks, McGlynn spoke to me about Owen’s bill and the chances that it might attract government support.
My podcast is a free bonus for paying subscribers. Everyone else can hear a short taster by clicking the ► symbol above.
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We are used to the idea of the criminal law penalising us when we do bad things. But there’s an increasing tendency for the state to punish large organisations for doing nothing at all.
The latest example of this is the new offence of failure to prevent fraud, which takes effect next autumn. Statutory guidance was issued by the government earlier this month. But it was not as helpful as businesses might have hoped.
For the latest episode of my podcast A Lawyer Talks, I have been discussing the legislation — and the guidance — with Nick Vamos, head of business crime at the long-established criminal defence solicitors Peters & Peters.
A former head of special crime and head of extradition at the Crown Prosecution Service, Vamos represented Boris Johnson when the former prime minister was accused of misleading parliament over “Partygate” and represented the Post Office in the appeals it faced by former postmasters who were convicted on flawed evidence.
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The death of George Carman QC at the age of 71 meant — as I told readers of the Daily Telegraph at the beginning of 2001 — that the age of the great advocate was at an end:
Until now. The 25 pages Carman managed to complete before his death form the starting point of a new book called Get Carman, which records his casework during the 1980s and 1990s. All the big names of the period are there: Jeremy Thorpe, Geoffrey Prime, Ken Dodd, Sonia Sutcliffe, Elton John, Gillian Taylforth, Jonathan Aitken, Neil Hamilton and Mohamed Al Fayed.
The book is written by Karen Phillipps, a fellow barrister who was Carman’s confidante and companion after his three marriages ended in divorce.
For the latest episode of my podcast A Lawyer Talks, Phillipps told me about the man she knew and the cases he won. She also answered the question I asked in 2001.
The podcast is available to paying subscribers. Every one else can hear a short taster by clicking the ► symbol above.
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What retired senior judges choose to say about major issues of the day is of real interest and importance — particularly when they are discussing legal issues — a former head of civil justice said last night.
Lord Dyson, who retired as master of the rolls in 2016 and then rejoined the chambers he used to head as a barrister, was delivering a lecture at Gray’s Inn called “Judicial after-life: should it be subject to any limits?”
His starting point was an open letter published in April and signed by Lady Hale, former president of the Supreme Court, as well as 600 other former judges and lawyers. The letter asserted that the International Court of Justice had “concluded that there was a plausible risk of genocide in Gaza”.
As Dyson kindly mentioned in his lecture, I then pointed out that this was not what the court had said. It was the Palestinians’ rights that were found to be plausible, not the risk they might face.
This prompted Dyson to sign a counter-letter correcting the error, something he told me he had never done before.
A final attempt to put right widespread misreporting of the court’s ruling was made some weeks later by the judge who had delivered it. “The court decided that the Palestinians had a plausible right to be protected from genocide,” Joan Donoghue told the BBC. “It didn’t decide that the claim of genocide was plausible.”
Meanwhile, Dyson had been struck by a paragraph in the Guardian’s report of the letter Hale had signed:
The letter’s significance lies not just in the number of signatories but the fact that it has been signed by senior retired judges, who normally shy away from commenting publicly on issues that are politically sensitive.
That was the catalyst for his Birkenhead lecture at Gray’s Inn, he said in an interview this week.
I asked Dyson whether it was appropriate for retired judges to give legal advice. If so, should they be regulated in the same way as lawyers?
We discussed whether Lord Neuberger, Hale’s predecessor as president of the Supreme Court, should have advised the Post Office on the civil claims against it — and whether its counsel, Lord Grabiner KC, had been right to hint at Neuberger’s involvement when addressing a court.
Arguing that Mr Justice Fraser should withdraw from the case, Grabiner had told the judge:
I am not the only judicial figure or barrister that has looked at this with a view to reaching that conclusion. It has also been looked at by another very senior person before the decision was taken to make this application.
I also pressed Dyson on whether he thought Neuberger and Lord Hoffmann should continue to sit in the Hong Kong Court of Final Appeal.
You can hear our conversation in the latest edition of A Lawyer Talks. My podcast is reserved for paying subscribers to A Lawyer Writes but, as an experiment, I am offering this brief taster to all readers:
It’s an amusing example of how intimidating it may be for judges to find someone who has served at a higher level in the judiciary appearing before them in court.
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Spare a thought for Robert Jenrick. A few hours after being appointed shadow justice secretary — with Kieran Mullan alongside him as the shadow justice minister — Jenrick was bounced back onto his bench by the formidable Alex Davies-Jones. His questions may read well in Hansard but the two minutes of video that I have posted above show how badly the defeated leadership candidate misjudged the position he now finds himself in.
Davies-Jones, MP for Pontypridd since 2019, may be no more than a junior minister at the Ministry of Justice but she dominated her department’s Commons questions yesterday, showing full mastery of the justice brief.
Her secretary of state didn’t get a look-in for half an hour — literally so, as this image shows:
While Davies-Jones was at the despatch box, just about all that could be seen of Shabana Mahmood was a sliver of light-blue fabric behind the junior minister’s right elbow.
Separation of powers
Many of MPs who asked questions yesterday were new to their jobs. But inexperience is no excuse for a failure to understand the proper limits of parliament. Here are a couple of examples:
Peter Bedford (Conservative): A lady from Northampton was recently given a 31-month sentence for a tweet, whereas an individual who incited physical violence on the streets of Birmingham as part of a pro-Palestinian protest received a far lesser sentence. Does the secretary of state agree that such inconsistencies create the perception, at least, that we have a two-tier justice system?
Shabana Mahmood: It is incumbent on members to ensure that such a perception does not take hold and not to inappropriately compare sentences handed out in different types of cases. As the hon gentleman well knows and every member of this house should know, sentences in individual cases are a matter for the independent judges who hear those cases; the trials unfold in front of them…
Robert Jenrick (shadow justice secretary): While of course respecting the judicial process and not commenting on the individual facts of the case, can the secretary of state explain the reported two-week delay between the Crown Prosecution Service making a charging decision with respect to the alleged Southport attacker and it being announced to the general public?
Shabana Mahmood: As the right hon member is now the shadow lord chancellor, may I remind him that we do not comment on cases that are sub judice? That includes commentary that everyone is aware relates to cases currently going through our legal processes. What I will say is that those are independent decisions for the Crown Prosecution Service, which ultimately decides what charges to bring. In live police investigations into complex cases, it is appropriate that those investigations, the charging decisions and, ultimately, the cases are done by the independent parts of the process and that there is no interference from government.
Sir Lindsay Hoyle, the Commons speaker, made it clear that ministers would indeed have to answer the concerns raised by Jenrick — but not until the case he was referring to had been concluded.
Single justice procedure
As usual, not much emerged from ministers’ answers. But there was an announcement about the much criticised single justice procedure, under which a lone magistrate processes a long list of undefended prosecutions with the assistance of a legal adviser. The list of defendants and the penalties they receive is available to reporters but the cases are not dealt with in open court.
“I have listened carefully to concerns raised about the single justice procedure,” said Heidi Alexander, the minister of state.
She continued:
As a first step, I have asked the Courts and Tribunals Service to redesign the single justice procedure and make it clearer. I will also call in single justice procedure prosecutors to discuss ways in which we can ensure that they consider the public interest in advance of making prosecutions…
I am clear that the single justice procedure is vital for the efficient running of the magistrates court. However, it must operate fairly and effectively. I will not tolerate poor practice and I will not hesitate to fundamentally reform the system if that is required.
Alexander’s announcement was welcomed by the chief executive of the Magistrates’ Association, Tom Franklin.
He said:
In March, we called for single justice procedure reform and published 12 recommendations to improve its operation, transparency and fairness. Our recommendations included making it a requirement that prosecutors see all pleas and mitigations from defendants before the cases are heard by the magistrate and improving communication, through a review of the paperwork sent to defendants, to make it simpler and easier to understand.
However, reform needs to go further. We are also urging the government to boost transparency by making provision for single justice procedure sittings to be observable by accredited journalists and by publishing more data on the single justice procedure — such as how many defendants plead guilty, how many make no pleas and how many ask to come to court — nationally and broken down by region.
Shadow cabinet
Who’s missing from this picture?
I can see no sign of Sir Jeremy Wright KC MP, shadow attorney general in Rishi Sunak’s caretaker opposition.
Who, then, will replace him? Will it be an MP to shadow the solicitor general Sarah Sackman KC MP in the Commons or a peer to question her boss Lord Hermer KC in the Lords? We should know soon.
Update 1640: the shadow attorney general will be Lord Wolfson of Tredegar KC, who resigned as a justice minister in Boris Johnson’s government over the “scale, context and nature” of breaches of the criminal law in Downing Street.
He will remain in practice at the bar.
Update 1800: Helen Grant MP, a solicitor and former justice minister, will be shadow solicitor general.
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Dawn Sturgess was fatally poisoned in 2018 after spraying herself with what she believed to be perfume. In fact, it was the military-grade nerve agent Novichok. It’s believed that the perfume bottle had been thrown away by Russian agents who had used it in an unsuccessful attempt to murder the former Russian intelligence officer Sergei Skripal and his daughter Yulia earlier in the year.
An unexpected death must be referred to the coroner and in circumstances such as this there would normally be an inquest. But Baroness Hallett, who had been appointed to conduct this inquest, advised the government to convert it into a public inquiry.
She told the home secretary in 2021:
A statutory inquiry would permit me to allow some evidence to be heard in closed session from which members of the public and core participants may be excluded. Although such a closed hearing would, in usual circumstances, be undesirable, the national security concerns in this case mean that the sensitive evidence is likely only be able to be examined and tested in a closed hearing, or not at all.
Lord Hughes of Ombersley, a former justice of the Supreme Court, was appointed to chair the Dawn Sturgess inquiry after Hallett was asked to conduct the public inquiry into Covid-19. Baroness May, who was prime minister at the time of the poisoning, told a BBC podcast last week she hoped Sturgess’s family would “take some comfort” from the proceedings.
When Hughes opens the inquiry into Sturgess’s death in Salisbury this morning, a great deal of information will remain secret on grounds of national security. But there’s one fact that I can disclose today. Witnesses and families will be helped by the Coroners’ Courts Support Service, an independent voluntary organisation that provides much-needed emotional support and practical assistance to bereaved families, witnesses and others attending inquests.
The support service was launched in 2003 and now has 375 fully-trained volunteers working in 44 of the 77 coronial areas in England and Wales. It has assisted at several recent public inquiries, including the current Thirlwall inquiry set up after the murders committed or attempted by Lucy Letby. At yet it is struggling the raise the funds it needs for its running costs.
For the latest episode of my podcast A Lawyer Talks, I went to see Roey Burden OBE, the founder and driving force behind the Coroners’ Courts Support Service. We discussed the challenges facing not just witnesses and bereaved families, who never imagined they would be called to attend an inquest, but also coroners, whose jurisdiction has been largely unreformed for 800 years.
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Next week, Gregory Jones KC will take up residence at the most famous criminal court in the world. I don’t mean he’ll be the resident judge; Alderman Jones will actually be living over the cells at the Old Bailey — or, to be more precise, a few floors up. His fellow sheriff David Chalk will also move into a flat at the Central Criminal Court.
What do the sheriffs do? And why would they spend a year of their lives living at the Old Bailey? The first KC to be appointed sheriff in some 900 years has been telling me how his new responsibilities as the judges’ social secretary will help buttress the rule of law. You can hear what he has to say in the inaugural episode of my new podcast, A Lawyer Talks.
You’ll also hear from Fiona Adler, former sheriff and now honorary secondary of London. She takes us into Court 1, which we view from the judges’ bench. And she tells me just what was passed round the jury box in a soup bowl when Dr Crippen — notorious as the first criminal to be arrested with the help of wireless telegraphy — was tried here in 1910 for murdering his wife.
This image, taken from the dock where Crippen once sat, shows the jury seats to the left, the witness box (with curtain), the judges’ bench (with sword), and counsel’s benches below the public gallery.
On the left here is the backsheet of the prosecution brief endorsed by Travers Humphreys with the verdicts on Crippen and his lover Ethel Le Neve. On the right is a standard Home Office letter upholding the death sentence on Crippen.
This is a closer view of the judges’ bench, with the lord mayor’s seat in the centre.
And here is the ceremonial sword.
Finally, we visit the Great Hall with its mural of the great lawgiver.
You can listen to my interviews with the sheriff and the secondary by clicking on the ► symbol above. Alternatively, you can download the podcast to hear later by clicking the download symbol in the graphic. And you should also be able to find A Lawyer Talks on Spotify, Apple Podcasts, YouTube and other podcast platforms.
* This podcast is available to all. It was published on 16 September at 6am. I am celebrating the formal launch of A Lawyer Talks by releasing a new episode just an hour later, at 7am. To listen to my second podcast and all future episodes, you will need a paid subscription to A Lawyer Writes. Details are here. Once you subscribe, you will be notified by email of each new podcast and all of my written work. You will also be able to read subscriber-only content and add comments. And you will have full access to an archive of all my pieces published here since the summer of 2020. Subscribers to A Lawyer Writes can also listen on Spotify.
* I plan to publish my third podcast in a day or so. After that, there will normally be no more than one podcast each week. During holiday periods, there may be none. There won’t be a fixed day of the week for podcasts: each episode will be uploaded when it is ready.
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The Ministry of Justice has been ordered to pay more than £900 in damages and costs to a motorist after his car was wrongly clamped by an enforcement agent who had been instructed to collect an unpaid fine.
Michael Burton, 49, who lives near Hull, had bought the car on hire-purchase — which meant it belonged to a finance company until all the payments had been made.
He says it was clamped by Craig Edward Allen, a self-employed agent acting for an enforcement company, even though Burton showed Allen a copy of his hire-purchase agreement.
In an attempt to avoid liability, the Ministry of Justice argued that it was not liable for the actions of the enforcement agent. That’s contrary to guidance published by the Ministry of Justice itself. When Burton’s barrister Daniel Kessler pointed this out in the Court of Appeal, the government’s lawyer argued that its own guidance was wrong and should not be relied on.
That argument was rejected by the Court of Appeal in a ruling last month. Burton was awarded £905 plus interest.
Last week, a call for evidence was issued by a working group on enforcement set up by the Civil Justice Council, which advises the Ministry of Justice and the judiciary on civil justice issues.
Not many people with outstanding debts can afford to take on the Ministry of Justice. Burton’s success in the courts has established a precedent that will support others in a similar position. I have been speaking to him and his solicitor Sarah Hougie for the my new podcast, A Lawyer Talks.
You can listen to it by clicking the ► symbol in the graphic at the top of this page (and then clicking ► again if you are reading this on email). It is also available on other podcast platforms.
The podcast is another on-air pilot, ahead of the series I plan to launch in September. It begins with a roundup of other stories in the news. Do let me know what you think of it by leaving a comment on the website.
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Harry Dunn’s parents are no longer seeking to appeal against a High Court ruling that the US intelligence analyst who caused the teenage motorcyclist’s death by careless driving nearly five years ago was entitled to diplomatic immunity, their lawyers have told me.
The finding that Anne Sacoolas enjoyed immunity from UK criminal jurisdiction at the time of Harry’s death was not reached “with any enthusiasm for the result”, Lord Justice Flaux and Mr Justice Saini had said in 2020. But that conclusion, they added, was “compelled by the operation of the Vienna Convention on Diplomatic Relations”.
Until now, it was thought that Charlotte Charles and Tim Dunn might still have been hoping to overturn that decision in the Court of Appeal. But lawyers from the newly merged global law firm A&O Shearman confirmed last week that the appeal “wasn’t pursued in the end because of the way that the criminal proceedings panned out”.
In addition, the law had been changed so that anyone in Sacoolas’s position would not have been entitled to immunity in future.
This month, a coroner found that the motorcyclist’s death was caused by a collision with a car driven by Sacoolas. She had emerged from RAF Croughton, a US communications centre in Northamptonshire, and then driven instinctively on the wrong side of the road.
In response to the inquest verdict, the Foreign Office made a statement about road safety.
Andrew Denny, head of UK public law at A&O Shearman, and Frances Beddow, an associate at the firm’s London disputes team, were speaking for the first time about the thousands of hours of unpaid work done by lawyers and support staff at Allen & Overy, which merged with Shearman & Sterling last month. The two lawyers were able to speak to me because the inquest into Dunn’s death has now concluded.
You can listen to my interview with them by clicking on the ► symbol above. It’s the second “on-air pilot” for my new podcast, called A Lawyer Talks. The podcast will be launched in the autumn and in the meantime I am trying out various formats on an occasional basis. Comments are welcome.
The legal proceedings, with their unique complications, were particularly difficult to report over the years because none of the lawyers involved was willing to explain what was going on.
Even so, I secured the only interview on the case ever given by Sacoolas’s US lawyer. Amy Jeffress told me in 2021 that her client would never return to the United Kingdom. Although some of those working on the case believed otherwise, that proved to be true.
Some of the background was outlined by Mrs Justice Cheema-Grubb in December 2022 when she gave Sacoolas a suspended sentence of eight months’ imprisonment.
* Once a podcast episode appears on my Substack blog A Lawyer Writes, it is automatically distributed to other podcast platforms including Spotify, Apple Podcasts and YouTube. My first podcast was published last Thursday and there is also an archive of other full-length audio recordings that I’ve made over the past four years. All podcasts can be downloaded for future listening. This episode, like the previous one released last Thursday, was produced by Neil Koenig.
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In her new book Rough Justice, the former Old Bailey judge Wendy Joseph KC explores areas where she believes the courts have fallen short over the years — including rape, domestic violence and child cruelty.
She does this by taking the reader through four dramatic cases, viewed from her seat on the judge’s bench. Although the people she writes about are not real, everything they say and do is based on what she has heard and seen in the courtroom.
It’s a literary technique she used to great effect two years ago in her first book, Unlawful Killings. Her new book takes this further by placing fictional cases in a real historic background. Law students will benefit from the detailed notes she writes on the issues raised.
Rough Justice — to be published by Penguin Random House on 18 July — is “a compelling read”, according to the former Supreme Court president Lady Hale. The best-selling crime writer Peter James says it’s “a beautifully written, immensely engaging, powerful and disturbing insight into a judge’s work”. I’m sure it will attract a great deal of interest when it reaches the bookshops next month.
I met Wendy Joseph this week at Pewterers’ Hall in the City of London, where she is currently the livery company’s elected master. As well as discussing her new book, we listened to some recent exchanges from the Post Office inquiry and she offered some shrewd advice on advocacy skills. I also asked her about pewter.
You can hear my first podcast by clicking on the ► symbol above. Alternatively, you can download it to listen later by clicking the three dots in the graphic. And you should also be able to find A Lawyer Talks on Spotify, Apple Podcasts, YouTube and other podcast platforms. There is also an archive of other audio recordings I’ve made over the past four years.
This podcast is what we call an on-air pilot — a test run to see what works and how we can improve it. There’ll be another one, in a slightly different format, next week.
If all goes according to plan, I’ll be launching a weekly series of podcasts in the autumn. Everyone on my email list — which is free to join — will be notified each time a new edition is available. You can also subscribe on whichever podcast platform you use.
Do let me know what you think of A Lawyer Talks by leaving a public comment in the box below.
* This edition of A Lawyer Talks was produced by Neil Koenig. It also includes the voices of Jason Beer KC; Paula Vennells; Lord Grabiner KC; Sam Stein KC; Anthony de Garr Robinson KC; and Sir Wyn Williams. The Old Bailey archive mentioned by Wendy Joseph can be found here.
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The challenge for the courts is making the most of new technologies and practices without losing sight of what worked in the past, a justice of the UK Supreme Court said yesterday.
In a lecture called Breathing Life into the Law: Achieving Access to Justice in the Modern State, Lady Rose of Colmworth said the best way of achieving this was a blend of creativity and conservatism.
“Like Moses and Jethro,” she said, “we must innovate without impairing the quality of justice being dispensed.”
Rose was delivering the Lionel Cohen lecture, which has been given annually at the Hebrew University of Jerusalem by a series of leading legal figures over the past 70 years. It was set up in honour of Lord Cohen of Walmer, the first Jewish law lord, who sat in the UK’s highest court from 1951 to 1960.
The lecture, sponsored by his family, is organised by the British Friends of the Hebrew University. It was well attended yesterday by members of the law faculty at the university’s Mount Scopus campus.
An edited text of Rose’s remarks will be published in due course. In the meantime, you can listen to the lecture as delivered by clicking the button above. You can also download the audio as a podcast.
* Note to readers: this is not the podcast I announced after the BBC decided to stop broadcasting Law in Action on Radio 4. Plans for that project are well advanced and I hope to announce more details at the end of June. The podcast itself will be launched in the autumn.
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Any move towards withdrawing from the European Convention on Human Rights (ECHR) would risk damaging the UK’s trading position, a former president of the human rights court argued this week.
Robert Spano, now an international business lawyer, was speaking to me on Tuesday evening at a public event sponsored by the law firm Gibson Dunn, where he is a partner.
Hours later, the Telegraph reported a claim by the former defence secretary Ben Wallace that the ECHR had become a threat to national security. His argument seems unconvincing, I say at the start of my column for this week’s Law Society Gazette. But most of the piece is devoted to reporting and analysing Spano’s comments.
The event on Tuesday was entertainingly introduced by Lord Falconer of Thornton, the former Labour lord chancellor who is also a partner at Gibson Dunn. He asked the first question.
I sent a recording of the interview to my paying subscribers on Wednesday morning, together with a summary of Spano’s comments. The recording is now available to all as a podcast, which you can download from this page and listen to in the normal way.
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Lord Pannick KC is undoubtedly the UK’s leading lawyer in his chosen field, public law. Perhaps best known for winning the Brexit and prorogation challenges that Gina Miller brought against the government in the Supreme Court, he is currently defending the government’s Rwanda asylum policy in the Court of Appeal while representing Boris Johnson in the Commons privileges committee.
He and I discussed these cases and much more at a fundraising event last Thursday for Support Through Court, a charity that helps people who face court alone to represent themselves to the best of their abilities. The event was introduced by Lord Dyson, a former master of the rolls, who also spoke at the end.
I published a video recording of the discussion on Friday but I thought it would be useful to make the recording available as a podcast that readers could download and enjoy at their leisure. Click the ⏵ symbol to start.
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The justice secretary Brandon Lewis said this afternoon he would defend judicial independence “to the hilt”. But, discussing reform of human rights, he stressed that parliament was sovereign.
Lewis was speaking at at a meeting arranged by the think tank Policy Exchange at the Conservative party conference in Birmingham.
You can listen to the lord chancellor’s remarks by clicking the button at the top of this page. I have edited a couple of the questions from the floor. The meeting was chaired by Lord Godson in a marquee that was far from soundproof.
Transcript
Here is a transcript, slightly edited for clarity, of what the justice secretary said. If anything seems unclear, please check the audio.
It’s a great pleasure to be here with Policy Exchange. As Dean [Godson] rightly outlined, I’ve had the honour of talking to people in Policy Exchange events over the years and everything from local government through my time at the Home Office, and as chairman of the party actually and, obviously, in Northern Ireland. And now as lord chancellor, it’s good to have an opportunity to talk to you a bit about what we’re looking at, and what the plans are as we move forward.
And yes, we do still wear robes as lord chancellor, as I found out on Thursday. Having started off thinking that maybe things have moved on, I found out at my swearing-in that you still wear robes and my 19-year-old daughter will eventually forgive me for putting on a wig and a pair of tights on Thursday, and then putting it on Instagram — which I will be going back to do again tomorrow because we have the opening of the legal year. So I'll be heading back to London for that before coming back.
Because I actually do think one of the things that we will focus on — and I'll talk a bit more about this later in the conference week — we have in our country something to be very proud of which is a world-leading legal profession. Legal services in this country actually are fundamental to everything we do across a wide range of areas.
And I think sometimes what some of us may think are occasionally antiquated and a bit odd — these ceremonies and services that we do — actually are really quite important, I think not only to remind the rest of all but ourselves about the history of our law and how it has evolved, and how it continues to evolve to reflect what we need in society. And that will continue as we go forward.
And that’s where we are, I think, when we start to look at human rights reform. It was our 2019 manifesto that specifically laid out that we will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We need to do that. And we need to be sure that we do that in a way that reflects our wish to reduce the ECHR’s influence in our system, whilst making sure we retain our other manifesto commitment that is hugely important, which is to remain a champion of collective security, the rule of law — which obviously I have a job to protect — as well as human rights, free trade, anti-corruption efforts, and a rules-based international system.
And we took more action on some of this just this week, particularly with regards to anti-corruption efforts with Putin’s regime and those who purport to support it.
There is a range of options for us as we go forward to explore in this area of human rights if we want to govern according to our manifesto pledge and remain absolutely true to what we promised to the people who voted for us in 2019. We do need to make sure that we are addressing, and dealing with, section 2 of the Human Rights Act — the obligation to take into account Strasbourg court jurisprudence — we need to give consideration to a tighter approach that limits creativity whilst encouraging our domestic courts to have the ability to diverge from Strasbourg case law more freely, that UK courts have primacy in and for UK law.
Now more widely, when we are interpreting human rights framework in the courts, we should always seek to prioritise protecting the public from convicted offenders during the term of their custodial sentence. That, to me — the protection of the public, and looking after victims — has to be key and at the heart of everything that we do in the MoJ.
But that also plays into a wider approach, and one that I intend to take as the justice secretary, which is focusing on, first and foremost, the safety and comfort of convicted offenders never ever being put over that of the safety of the public and of protecting victims.
Now, there are many changes to the human rights framework that will need to be considered both by government and wider parliament. And having been a government member of parliament during a period where the relationship between parliament and the courts has been strained from time to time, I know how important it is to make sure that if we want to take forward reform in this area, we get it right, so we deliver the outcome we actually want to achieve. It is important that we ensure that the courts recognise the supremacy in a democratic system of the decisions made by parliament.
That does not conflict with the principle of the independence the judiciary, which as lord chancellor I will defend to the absolute hilt. But we do need to be clear that parliament is sovereign. And if parliament has expressed a view through legislation, then the courts should always respect that view when implementing the law that has been passed. Now this is a complex area — to get that balance right — and it’s one that will require a lot of work in order to make sure that our proposals are [?] and it is a principle that we can all support.
The need to reduce the courts backlog is also something that has challenged a few justice secretaries before me as well. But due to the recent strike action, as well as coming out of the Covid pandemic, we’ve seen that backlog go back up and become more challenging. I want to make sure that, during my period of time as justice secretary, all possible avenues are being explored and considered, I want to be working with the judiciary — who are equally keen to see this backlog dealt with — to look at what more we can do to get that backlog back down, and ensure that we’re looking at every opportunity to do that.
I intend to put my department to work in exploring what can be done to also ensure that we curb the use of SLAPPs. These are strategic lawsuits against public participation. They are too often used by wealthy individuals to intimidate and silence the critics. And it’s not right that money can buy legal impunity in our system. We need to ensure that we have a system here, a system of human rights that doesn’t create or give cover for cancel culture. We need to do everything we can to protect freedom of speech, even when it can be really, really annoying.
We can’t allow people to claim their human rights are being infringed because they disagree with us. Democracy is about debate. Democracy happens because of debate. Debate means having that opportunity to say what you believe, to make a case for it to argue for it. We all have a duty to be aware that what we say matters. So be aware that when we speak, we are talking to people and that will have an impact. We need to be free to have that debate and that conversation.
We’re not talking about, in this context, protecting terrorists from inciting hatred —which must always be something we have the legal ability to deal with. But we do need to make sure that people in everyday life and in public life can have their debates freely, and have those debates openly and properly. And if that means occasionally the odd one of us as a politician gets a bit offended and needs to fight our own corner, that's what democracy is about. And that’s worth defending. As we look at the human rights and freedom to do that, as we move forward.
Questions
My name is Grace DaCosta. I'm from Quakers in Britain. And I was wondering what was happening with the Bill of Rights Bill, whether that will be brought back or whether there'll be other legislation to replace it.
We are looking at a range of things from what would have been in the Bill of Rights Bill, which we’re not bringing forward at the moment. What we are looking at is, what is the right piece of legislation to bring forward some of the measures that we wanted to deal with, for example, I’ve just been talking, at the end of my few words there, freedom of speech, strategic lawsuits against public participation, things like that, and how we do that. What’s the best, speediest way of dealing with that? I know a lot of people and we as a government are determined to make sure we are dealing with the issues that can help us deal with the issues around illegal immigration. I’m working closely with the Home Secretary to ensure that we can put together legislation that deals with that. So those key tenets we wanted to deal with we will deal with, but we’ll probably do it in different pieces of legislation.
Chris McCain from the Press Association. I just wanted to ask about — you mentioned the strike action. Obviously one of the major complaints in the Criminal Bar Association is about legal aid and money. In the context where we have a Treasury looking to cut funding, will you be pushing to protect and indeed increase funding for legal aid?
Obviously one of the one of the key — or probably the number one acute issues on my desk on coming into office has been dealing with the bar strike. They will be going to ballot next week. I am hopeful that they will look at the — I’m confident they will look at the proposals carefully. I’m hopeful that they will look at them positively and vote and that we will see an end to the strike. It’s a comprehensive package that deals with the issues that need to be dealt with.
So I’m hopeful we will deal with that which will help move things forward and actually puts the whole structure particularly for the junior bar in a very different place, in terms of covering off some of the issues and giving payment there for section 28, which I want to see more of, to deal with RASSO cases, rape and serious sexual assault cases, and also for paperwork and wasted work, which has been an issue I know, for the bar for a very long time.
Wider issues around legal aid: we’re not at the point of having the future legal aid budget looked at yet but at the moment, as I say, I’m very keen to ensure that we have a judiciary that is able to work — I want to make sure we’ve got a judiciary and a bar that's able to work in a good environment as well. One of the issues around dealing with a court backlog will also be making sure that all of our courts can function properly. And we are blessed in this country with great teams who work across those courts doing the best they can to keep them functioning, and I want to make sure they’ve got the support that they need.
I can just ask a question that’s just come in on WhatsApp from Rajiv Shah, formerly Number 10 constitution spad. So does the Lord Chancellor agree that it is important to ensure that our domestic courts cannot gold-plate the ECHR and go beyond Strasbourg?
Obviously I first of all, as the lord chancellor will reiterate I do believe absolutely in the independence of the judiciary. So I will respect and protect their independence. But one of the things I said in my opening remarks, is I want to make sure that our judiciary are clear of a couple of things. One is that parliament is sovereign and if parliament passes a law, our judiciary are delivering on that and respecting that, but also that in UK law, UK courts have primacy. And if there is a reflection from Strasbourg, it’s a matter for the UK courts how they’re interpret it.
What would you say to those who are concerned about implications these changes could have for our standing internationally and also in holding other countries accountable for human rights?
Internationally, I think we are in a very, very strong place; our legal system is respected around the world. We are number two after the US in the world, number one in Europe for legal services. I think as we move forward, there’s an opportunity for us to grow that sector. It’s something I’m very, very interested in, very keen to, to work on. I mentioned this in my speech at the swearing-in ceremony the other day, with crypto and blockchain and things like that: there’s there's big opportunities for us. That is fundamentally, you are right, built on our international reputation as a centre for law and the rule of law. But the rule of law is what recognises the sovereignty of parliament. So I think it is absolutely in line with our international standard. That parliaments supremacy is there. That is what our democracy is founded on. I think without that our democracy suffers.
Question about consolidation of legislation
What we’re doing is working through all of the issues that were being considered for the Bill of Rights, looking at how we, which of those we take forward, and in which way we take them forward through different pieces of legislation, whether it’s through Ministry of Justice legislation, or potentially through Home Office legislation, etc, over the next period, whether it’s this session or the next session.
It always sounds very simple to bring together lots of complicated legislation. I did try to look to do a similar thing and kind of did this with planning law, actually, while I was in what was then DCLG. It is never as simple as it sounds, because the way these things interact, and actually, when you've got limited parliamentary time, using parliamentary time to repeat legislation you’ve already got but to put it in a different format isn’t a good use of parliamentary time. So I have to say I’m not somebody is going to be proposing to the prime minister that while we’ve got legislation, and I’ve got legislation I want to look at, to do more to help victims and keep society safe, to bring out legislation that basically repeats legislation we’ve already got in a different format isn’t a good use of parliamentary time. But you never say never to look at how you can do things better and more efficiently in the future.
Benjamin Ward, I'm a secondary school teacher of Religious Studies. The Human Rights Act at the moment. I think article 2 of protocol 1 includes the right to education, but also the right for parents to have their religious and philosophical beliefs respected in the education of their children. I think there are some within the party who will perhaps have more intolerant voices about ensuring that religious studies in schools is objective and plural.
As I say I, I fundamentally believe in people’s right to offend me. And I appreciate, hopefully, with religious issues, that’s not generally how people take things forward but you know, I have a lot of sympathy with some of the debates. I remember seeing a piece a few years ago from Rowan Atkinson, actually — I thought was brilliantly written — around the right to be offended. You know, our society develops and evolves and grows, because we have these debates. And there are things we do today that are so different to what happened in the past, because either our tolerance has changed in that we're more tolerant of some things, we are less tolerant of others.
And that is evolution, that happens through debate. And if you restrict people’s ability to debate and you have a cancel culture, then things don't move on. And they become trapped in one person’s view of the world, which I think is very, very dangerous. So you know, there is always a, there’s a duty on all of us in public roles — and obviously teachers particularly have this responsibility with young people — to make sure that there’s balance and they’ve got an opportunity to understand what the options are. But that’s a duty we have as individuals or as professionals to deliver on our professional duty. I think it’s right that we keep the freedom of speech right there for people to be able to argue for what they believe in.
I was wondering if you’d be looking into the Communications Act, and specifically section 127, which is currently under a lot of controversy about the fact that it prohibits grossly controversial speech, and therefore means that there isn’t a legal right to offend.
In regards to freedom of speech, we have recently seen the Free Speech Union have their PayPal accounts removed. Do you think that you do for this for see the new legislation giving a positive right to companies to individuals to challenge that kind of thing in the future, rather than have to rely on contract law?
I’m aware that there is legislation which means that police can’t go on strike. Do you think that there’s a case for expanding that to the legal profession, on the argument of dangerous criminals not being prosecuted, and therefore, obviously, not immediately, but in an extreme situation, increasing the legislation or increasing the scope of it, so that barristers wouldn’t be allowed to strike as well under extreme circumstances?
I’m looking at a whole range of things around how we ensure we can do this and deliver this in a way that is, as I say, it’s for me, it's looking very, very carefully, what is the outcome we want to achieve and how do we best achieve that? That means being quite careful with what we do not getting too caught up in what sounds good on first appraisal, but actually working through very methodically, exactly what we want to achieve so you’ll have to bewas a little bit longer, but making sure we can give that space to people is very key, which plays very well into the point about the free speech union. And I thought it was very disappointing actually to see that kind of people having to work through in that contractual way using contract law.
There is a real issue sometimes when we see — and I know this from previous jobs when I was in the Home Office as well — the frustration around seeing certain things online that companies can be quite slow. They’re getting much better now, but they have been historically very, very slow at dealing with. And it’s hard to explain to somebody why something like the Free Speech union is being taken off PayPal when you see things that are encouraging suicide and terrorism on wide social media from big, multinational global companies. So I think we need to make sure that we're dealing with that as a priority rather than people’s access to freedom of speech.
In terms of your point about the prime minister, having been chairman of the Conservative Party, I know very well not to step on a chair of the Conservative Party’s toes, but I'm sure Jake won't mind me saying, the best thing we can do in the Conservative Party is make sure we stick with and back our leader. We've got to make sure that we are focused on that for delivering people that's and it's not an issue for parliament, actually, it's the way the party rules work.
And in terms of the strikes that I’ve always been personally, very much personally, I think, you know, with most of our emergency services do not and cannot strike. And I know from having gone through the Fire Brigades Union strike, some of our colleagues in the Armed Forces always found it slightly odd that they were having to come back from Afghanistan on leave and while they’re on leave cover for firefighters who are going on strike over their pension age and things like that. So there is a an issue there. But some parts of sectors can have some can’t.
I think the bar is quite different because what we some people don’t often realise is all the barristers actually self-employed. And even the Criminal Bar Association, which is often referred to as a union, isn’t a union in that strictest sense, because all of its members are self-employed. So we’ve been having discussions with the Criminal Bar Association, they will be putting this ballot to members next week. As I say, I hope they’ll vote positively but, it is true, we do need to ensure that we’re not going through this kind of thing every four years, and that we’ve got a structure that means it can continue to deliver for people in a way that ensures that victims can see their access to justice is not being slowed down by this kind of action.
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This isn’t a political blog so I’m not going to make any tired references to the cover-up being worse than the crime or history repeating itself as farce. I realise that the current threat from the Omicron variant is no laughing matter. But that, of course, is why it is so important for the prime minister and his government to maintain the confidence of the British people.
The leak of a rehearsal on 22 December for the No 10 press conferences that were subsequently abandoned has persuaded most people that there was indeed some sort of party in Downing Street on 18 December, at a time when London was in a tier 3 lockdown. That meant gatherings of two or more people in an indoor space were prohibited, subject to exceptions. Did any of those exceptions apply to the party?
That was what I was asked in a live interview on Radio 4’s PM programme two days ago, on 6 December. You can hear the item by clicking on the audio link at the top of this page.
The story was presented by Evan Davis in a deliberately lighthearted way. That was the programme’s editorial choice but one I thought was entirely appropriate.
How could Downing Street defend itself, Evan wanted to know. The government had a number of options, I replied, and it couldn’t be blamed for not showing its hand at this stage.
The first was that there are exceptions in the regulations for what are called permitted organised gatherings. These cover meetings on the premises of a public body. The working areas of Downing Street must surely come within that definition.
My next suggestion was that the event might have been one of the gatherings necessary for certain purposes that are exempted under the regulations. These include a gathering that is reasonably necessary for work purposes.
Evan appeared unconvinced and asked me for my clincher. This had been suggested earlier by Adam Wagner, the barrister who has made it his job to understand the regulations:
The Public Health (Control of Diseases) Act 1984 is the act of parliament under which all these regulations were made.
Section 73 of the act deals with Crown property. Subsection (4)(d) allows a government department to agree with the local authority that a specified and relevant provision in the act should apply to that property.
I take that to mean that the government department responsible for 10 Downing Street — the Cabinet Office, I suppose — could agree with Westminster City Council that the lockdown restrictions would apply on its premises. Assuming no such agreement had been made — and I would be astounded if it had — then government premises are exempt from the regulations.
One rule for them and another for us? Not really, I told Evan: you can’t expect ministers and officials to run the country from home. I was less willing to defend the suggestion that other government staff were invited to visit No 10 and join the party.
Finally, I explained that, under section 64A of the 1984 act, a prosecutor has six months to bring a prosecution “beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor's knowledge”. There is an upper limit of three years from the date of the alleged offence.
The barrister Matthew Scott published a detailed blog shortly after my broadcast, which he had clearly been working on for much of the day. He concluded:
If the party was confined to the government rooms and offices in the “official” parts of No 10, it probably did not breach the criminal law, even though it was in flagrant breach of its spirit, as well as of the official advice and guidance, much of it emanating from the prime minister himself.
I think that sums it up rather well.
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Better still, as the festive season is upon us:
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Baroness Hale spoke yesterday of her “huge admiration” for Israel, a country she has visited at least half a dozen times for judicial exchanges and academic seminars. Her unscripted remarks — which you can listen to by clicking the podcast symbol above — were made after the former president of the UK Supreme Court was made an honorary doctor of philosophy by Bar-Ilan University, near Tel Aviv, for her “outstanding efforts on behalf of women and minorities” and her “dedication to the protection of democracy and basic human rights”.
Because of Covid travel restrictions, Hale’s PhD (hon) was awarded to her at a small ceremony in a London garden. It was hosted by Romie Tager QC, on behalf of the university. Professor Ruth Halperin-Kaddari, founding director of the Rackman Center for the Advancement of the Status of Women at Bar-Ilan university law faculty, sent a message of support.
As well as paying tribute to what she described as the deep intellectual tradition of Israeli lawyers, Hale spoke of the three Abrahamic faiths:
Those three religions have more in common than they have separating them — although there are important things that separate them. But one are the things that they have in common is a problem with women.
In a recent conference organised by Halperin-Kaddari, Hale and other speakers looked for what she called “sensible, sensitive ways” of addressing that problem.
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BBC Radio Scotland ran an interview with me this morning (recorded on Friday) about threats to the rule of law.
Isobel Fraser asked about references to lefty lawyers by the prime minister and the home secretary. We also discussed the review of judicial review and the UK Internal Market Bill.
Joanna Cherry QC was kind enough to mention it on Twitter and I thought listeners outside Scotland might like to hear the interview, which I have very slightly edited.
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Stephanie Hayward, a barrister specialising in criminal law, interviewed me live yesterday for her Instagram channel @behindthegownbarristers. We spoke mainly about my new book, Enemies of the People?
You can watch the entire interview here but I thought it would be useful to post this (slightly edited) audio version so that you can also listen to it as a podcast.
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