The Weekly Round-up: Crown courts and protest rights under strain

28 June 2021 by Hugo Murphy

In the news:

Figures published by the Ministry of Justice showed that the backlog of crown court cases had risen to yet another record high: by 31 March this year, there were almost 60,000 outstanding cases, a rise of 45 per cent on the previous year. In the magistrates’ courts, that figure stood at 400,000, a rise of 21 per cent.

Waiting times have hiked accordingly: the average crown court case it now taking just under a year, 363 days, to be heard. Some trials are already being scheduled for 2023.

These latest figures follow the Ministry of Justice’s End-to-End Rape Review Report on Findings and Actions, covered on last week’s round-up, which revealed that processing times for rape complainants were particularly egregious, averaging around a thousand days between the commission of an offence and the conclusion of a trial.

Several MPs were quick to diagnose root causes of the criminal justice system’s dismal condition. Shadow justice secretary David Lammy complained that ‘the Conservatives are forcing victims of rape, domestic abuse and violent assault to wait months and years for justice if they get it at all’, blaming the compounded effect of ‘the government’s decade of court closures, combined with its incompetent response to the pandemic’. Liberal Democrat MP Wera Hobhouse also pointed to pre-coronavirus underfunding, warning that ‘ministers must not use Covid as an excuse for this backlog, or to undermine the fundamental right to trial by jury.’

Various familiar solutions have been proposed, including opening more Nightingale courts, welcoming more part-time judges, and increasing the number of sitting days available in the crown courts. This week, the Lord Chief Justice, Lord Burnett of Maldon, even suggested that the case for temporarily reducing the number of jurors from twelve to seven remains compelling. 

In other news:

• Proposed curbs on protests in the government’s controversial new policing bill came under fire from human rights groups this week. On Tuesday, Parliament’s Joint Committee on Human Rights (JCHR) published a report warning that provisions which allow protests to be restricted because of the noise they generate and which increase penalties for those who breach conditions placed on protests confer unnecessarily and disproportionately broad powers on the Home Secretary and the police. The JCHR recommended that increased police powers should be limited to changing the start and finish time of assemblies. A day later, UN special rapporteur for human rights and the environment David Boyd also raised his concern that the bill unacceptably jeopardises the fundamental right to protest.
• An international panel of legal experts published on Tuesday a ‘historic’ draft definition of ecocide, which it hopes will be used by the International Criminal Court to prosecute the most grievous harms committed against the environment. The provision defines the offence – which it hopes will be adopted as only the fifth charge prosecuted by the ICC, alongside war crimes, crimes against humanity, genocide and the crime of aggression – as ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts’.
• A private members’ bill targeting modern slavery was introduced to parliament. The Modern Slavery (Amendment) Bill, sponsored by independent crossbench peer Lord Alton of Liverpool, proposes to amend the Modern Slavery Act 2015 to include provisions establishing minimum standards of transparency in supply chains regarding modern slavery and human trafficking. 

In the courts:

• SW v UK (ECtHR), App no 87/18 (22 June 2021): The European Court of Human Rights ordered the UK Government to pay €24,000 for non-pecuniary damage and €60,000 in legal costs to a social worker unfairly accused of professional misconduct by a Family Court judge. In a judgment of 17 October 2014, the fact-finding judge determined that the social worker had lied about evidence relating sexual abuse allegations as a professional witness and had emotionally abused one of the children involved in the case. As a result of the damning finding, the relevant local authority discontinued her employment contract. Two years later, the Court of Appeal held that the judge’s criticism had been reached by a process which was ‘manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8’, and ordered that the offending parts of the judgment be redacted. The ECtHR found that this decision afforded the applicant with inadequate redress, ruling that financial compensation was also required.
• Director of Public Prosecutions v Ziegler & Ors [2021] UKSC 23 (25 June 2021): The Supreme Court quashed the convictions of four protestors who blockaded a London arms fair. In 2017, the appellants used ‘lock-on’ devices to block access to the ExCeL Centre in East London during the Defence and Security Equipment International (DSEI) arms fair. In 2018, the Director of Public Prosecutions appealed a district judge’s decision to clear the protestors’ charges, and they were convicted at the High Court in early 2019 and sentenced to conditional discharges of 12 months. In quashing these convictions, the majority of the Supreme Court held that they had been reached without paying sufficient attention to the heightened protection warranted by forms of political expression in an appropriate evaluation of proportionality. In their leading judgment, Lords Hamblen and Stephens maintained that ‘[t]here should be a certain degree of tolerance to disruption to ordinary life, including disruption of traffic, caused by the exercise of the right to freedom of expression or freedom of peaceful assembly.’
• Secretary of State for the Home Department, R (On the Application Of) v First-tier Tribunal (Social Entitlement Chamber) [2021] EWHC 1690 (Admin) (21 June 2021): The High Court quashed a tribunal ruling that accommodation must be provided to refused asylum-seekers who are destitute until all Covid restrictions are lifted. Surveying the case law on the state’s positive human rights obligations under Articles 2, 3 and 8 in the context of the pandemic, Chamberlain J noted that the government should be afforded a ‘broad margin of appreciation to decide how best to protect destitute asylum-seekers from the various threats to their life and health to which homelessness gives rise’, determining that unless failed asylum-seekers could explain why they were unable to return home, ‘the Secretary of State was entitled to regard the offer of accommodation conditional on taking steps to leave the UK as a reasonable discharge of any positive obligation under Articles 2, 3 or 8’.

On the UKHRB:

• 1COR’s Angus McCullough QC provides a link to the Special Advocates’ submission to the review of closed material procedures (CMPs) under the Justice and Security Act 2013, which enable the State to rely on secret material not shown to the other side in court proceedings.
• 1COR’s Robert Kellar QC and Owain Thomas QC cover the Supreme Court’s recent decision in Khan v Meadows, regarding the principles applicable to ‘wrongful birth’ claims for the cost of bringing up a disabled child who would not have been born but for a doctor’s negligent medical advice/treatment.