New home for judgments

National Archives to house free public database next year

The government is to establish a free, comprehensive database of all judgments delivered in England and Wales.

In an announcement this morning, the government promised a website hosting thousands of court judgments, saving time and money for lawyers, judges, academics, journalists, students and members of the public who require them for case preparation or research purposes.

The new database will be run by the National Archives, which already publishes legislation dating back to 1267. It will open next April.

As the official archive and publisher for the UK Government, the National Archives was chosen because of its long-standing expertise in storing and publishing information securely.

Lawyers currently pay providers such as Westlaw UK and the Incorporated Council of Law Reporting, which analyse and annotate judgments delivered by courts and tribunals.

But smaller firms and not-for-profit organisations rely on BAILII, the British and Irish Legal Information Institute. It has a tiny staff and currently receives nearly a quarter of its £230,000 annual budget from the Ministry of Justice.

BAILLI misses some extempore (oral) judgments, particularly those delivered in the criminal division of the Court of Appeal. It does not carry sentencing remarks, although some judges send these for publication on the judiciary website.

The lord chancellor, Robert Buckland QC MP, said:

Ensuring court judgments are easily accessible is central to the rule of law and the principle of open justice.

Having used BAILII myself as a criminal barrister, I am extremely grateful for the work they have done over the years to make judgments available to the public.

This new service will ensure they remain accessible to anyone who needs them, under safe and secure arrangements with the National Archives.

In October 2019, the Ministry of Justice published a report on access to justice by Dr Natalie Byrom, director of research at the Legal Education Foundation. In her recommendations, Byrom said the Ministry of Justice should arrange for free and comprehensive access to judgments in a structured, machine-readable format.

Court users told her that the failure to provide this service created barriers to entry for law-tech start-ups. International pioneers of online dispute resolution services said that without free access to case law and authoritative legal commentary it was unreasonable to expect litigants-in-person to present cases in courts or tribunals.

This morning, Byrom said:

Providing complete access to judgments is a central aspect of the rule of law, allowing individuals to understand their legal position and initiate or defend legal claims. A complete, agreed record is also vital in supporting research that informs the development of public policy and in the delivery of that policy, including encouraging uptake of reformed services.

We urge the government to ensure this transfer will lead to comprehensive coverage of judgments, available in one single place for the purposes of research and ease of access. There is still more to be done, including reducing the costs of accessing transcripts for those that need them and taking steps towards the publication of sentencing remarks for a holistic understanding of judges’ decisions.

However, we strongly commend this decision as the first step towards creating a fairer and more transparent system and supporting evidence-led reform.

BAILII also welcomed the new rule for the National Archives. Sir Ross Cranston, the former MP and former High Court judge who chairs BAILII’s trustees, said:

These changes in no way diminish BAILII’s role in providing free access to the judgments of the courts and tribunals of the UK, Ireland and other common law jurisdictions. The continued generosity of our donors and supporters will allow us to expand our offering not only to those throughout the UK and Ireland, but also internationally where our law is used and valued.

The Ministry of Justice will stop funding BAILII next April. But the charity said it would continue to provide the most comprehensive single source of free legal information, not just for England and Wales but also for Scotland, Northern Ireland, the Republic of Ireland and other important common law jurisdictions.

It said it would be working with the Legal Education Foundation to support the National Archives in developing its new services and to develop BAILII’s own broader service.

Matthew Smerdon, chief executive of the Legal Education Foundation, said:

BAILII has played a key role in the international movement calling for free access to law as means to promote justice and rule of law. In that context, the Legal Education Foundation welcomes the announcement of the new role of the National Archives as making a positive contribution to this goal and to helping people to understand and use the law.

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Barristers cancel their name

Hardwicke to become Gatehouse Chambers because of slave links

A set of barristers in Lincoln’s Inn is to change its name because of its slave links.

Hardwicke Chambers said today:

During the course of 2020 and the Black Lives Matter protests following the murder of George Floyd, a number of legal bloggers started to investigate historic legal figures, including Lord Hardwicke, the 18th century lord chancellor. Lord Hardwicke was one of two authors of the Yorke-Talbot opinion in 1729 which was relied on by slave owners as providing legal justification for slavery for many years.

The premises of Hardwicke Building, named by Lincoln’s Inn, became the name of the chambers who have occupied it since 1991. 

Time for a change.

Once discovered, the history of the name did not sit comfortably with members and staff. On 29 July 2020, in a move consistent with the modern organisation’s values, the members took the decision to change the name. 

Gatehouse Chambers is now pleased to announce its new name, a name signifying strength and trustworthiness, but also access to new adventures and opportunities. 

The change to Gatehouse Chambers will be effective from 19 July 2021.

The change coincides with a move to new premises at the new gatehouse building in Gray’s Inn, to be known as 1 Lady Hale Gate.

In response to my report this morning, the justice minister Lord Wolfson of Tredegar QC said:

The joint head of chambers at Hardwicke replied:

A drink at the bar

Graham Boal QC writes frankly about illness and recovery

As you would expect from a former Old Bailey judge, Graham Boal QC is searingly honest about the challenges he has faced — and overcome. His autobiography, to be published by Quiller this week, is called A Drink at the Bar. In case that’s too cryptic, he has subtitled it A Memoir of Crime, Justice and Overcoming Personal Demons. And for anyone who’s still puzzled, he explains on the first page that it’s

an account of the life of a barrister who was, or became, an alcoholic depressive: or, perhaps more accurately, the story of a now-recovering alcoholic depressive who was a barrister and then a judge.

Writing about one’s human frailties is entirely commendable and Boal, 77, dedicates his book to the Westminster Drug Project, where he serves as a trustee and board member. But he reminds us of another demon that is harder to defend, a speech he made in 1999 as a serving judge to what he was told would be a private dinner for criminal lawyers. Although it was an attempt to satirise political correctness, it crossed the boundaries of what was, even then, considered acceptable.

As Boal explains,

by the time I made my speech at the Criminal Bar Association dinner I had detected what I thought were definite signs that appointments to silk and to the bench were being influenced by politically correct considerations. I decided to give voice to these concerns but made the terrible mistake of doing so by including what I intended to be an amusing parody.

To say it backfired would be a huge understatement. When my words were reported in the Guardian and on the BBC I was branded a sexist, racist, homophobic bigot. To make matters worse, the Daily Mail contained a sympathetic article headed “The jocular judge who blundered into a quip too far”, and included this description: “Graham Boal’s ready wit, clubbable nature and sense of the absurd have long made him a popular figure on the legal party circuit.”

The next few days were extremely uncomfortable, with criticism pouring in from many quarters, and including a serious written reprimand from the lord chancellor. I have no doubt that, had I made that speech twenty years later, I would have been dismissed. I suspect that even at this distance of time, were I to be invited to address an audience at most universities, I would be no-platformed or “cancelled”.

I very much regret the whole incident, and recognise that my attempt at combining humour with a serious point was totally misguided. As I did at the time, I apologise again here to those to whom I caused offence. But I do not resile from the serious point I was trying so clumsily to make.

Life at the bar

Well aware that, as he puts it, “there are few more boring experiences than ploughing through the reminiscences of retired barristers and judges”, Boal takes us through his early life and career at a reasonably brisk pace. But we notice some pointers to the future: Roaccutane, prescribed for his teenage acne, was later linked to depressive illness. His pupil-master became an alcoholic. At weekday dinner parties with friends, Boal “consumed more than my fair share of wine”. He was convicted of drink-driving.

As the BBC’s legal correspondent from 1985 to 2000, I often encountered Boal prosecuting or defending in the biggest criminal cases of the time. He was straight, fair and utterly charming. In the trial of Jeremy Thorpe, the former Liberal Party leader acquitted in 1979 of conspiracy to murder, Boal was junior counsel for the defence. Ironically, he was led by George Carman, a QC whose capacity for drink and self-destruction was legendary.

George Carman

Boal’s account of Carman is perhaps the most fascinating part of his book. This is how it concludes:

Nothing I have written in this chapter should be read as detracting from my description of George as a flawed forensic genius. His work-life balance was skewed to an extent rarely equalled by others. He is quoted as having said “the law is addictive”, and I have no doubt that he was an addict.

As I now appreciate, he exhibited all the characteristics of an alcoholic: not just his drinking, but his recklessness, and his driven determination to succeed, despite any self-doubt that lay well hidden below the surface. However many forensic victories he chalked up, however much money he made, however much he was fêted and admired, it was never enough. But as an advocate he was, at his best, peerless, and it was a privilege to watch him in action at such close quarters on so many occasions.

The IRA bombings

The mid-1970s saw a series of Irish republican attacks in England. Boal recalls an IRA car bomb that exploded outside the Old Bailey in 1973:

Photographs in the press the next morning showed the dishevelled, twenty-one-stone figure of my great friend, James Crespi, who announced that he had “saved the fabric of the Central Criminal Court by inserting my body between the bomb and the building”. As he later regaled his friends and acquaintances in El Vino’s and the Garrick Club with the story, he always added that he would carry “bits of Michael Mansfield’s bicycle” in his torso for the rest of his life.

In 1990, Boal was told that that the case of the Birmingham Six was to be referred to the Court of Appeal for the second time. The six had been convicted of 21 murders arising from the bombing of two Birmingham pubs in 1974. Boal was to advise the DPP, Sir Allan Green QC, whether the men’s appeal should be opposed. First though, in an unprecedented departure from normal practice, he was to help supervise an inquiry by Devon and Cornwall police into the original, deeply flawed, investigation by West Midlands detectives.

Some months later, it was Boal who told the Court of Appeal that, in the prosecution’s view, “these convictions are no longer both safe and satisfactory”. After considering the new evidence, a court headed by Lord Justice Lloyd quashed their convictions.

“As for myself,” writes Boal, “I had managed to prepare for and conduct the case of the Birmingham Six by abstaining from alcohol for a period of weeks or months, but once it was over I found sustaining that abstinence increasingly difficult.”

Soon afterwards, he and his wife flew off to a luxury island resort in the West Indies.

There I found the temptation of rum and Coke in the sunshine on a boat on clear blue water irresistible, and the red flag which we had to hoist outside our chalet by the seashore to summon service should have been taken as a red card against consumption of alcohol. I failed to heed yet another warning sign. During the following months I was a fully functioning alcoholic depressive who did not know that that was what he was.

Rising from the depths

Later chapters of Boal’s book make for painful reading. His marriage broke down. He was treated for reactive depression in hospital. He attempted suicide. After 18 months’ sick-leave, he realised he could not return to his position as an Old Bailey judge.

But this is a story with a happy ending. Boal recovered. He overcame his dependence on alcohol and nicotine. He and his wife were able to put their lives back together. They now live in what sounds like a delightful village on the north coast of Norfolk, playing a full part in local life. They are rightly proud of their son, daughter-in-law and grandchildren.

Despite everything, then, Graham Boal considers himself to be a very lucky man indeed.

Appeal judges refuse extradition

Businessman who suffered “flagrantly unfair” trial in Romania is freed

Since 2004, the European arrest warrant has allowed fast-track extradition between members of the European Union. Mutual recognition is based on the understanding that each EU state can trust the judicial processes of every other member state. But, as we saw last week, there are exceptions.

Gabriel Popoviciu, 61, a businessman, was convicted of bribery and abuse of power in his native Romania in 2016. The case related to the sale of land for the development of the Băneasa shopping centre in Bucharest. Popoviciu was sentenced to nine years’ imprisonment, reduced to seven years on appeal. In 2017 he was arrested in England and a district judge ordered his return to Romania. Last Friday, after hearing fresh evidence, the Court of Appeal ordered his release.

Edward Fitzgerald QC, for Popoviciu, argued that his client would suffer a “flagrant denial of justice” if sent back to serve his sentence in Romania. That has been defined by the European Court of Human Rights as “a breach of the principles of fair trial guaranteed by article 6 [of the human rights convention] which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article”.

If Popoviciu’s trial had been flagrantly unfair, then sending him back to serve the sentence passed would breach article 5, the right to liberty.

So the question for Lord Justice Holroyde, sitting in the Court of Appeal with Mr Justice Jay, was whether Popoviciu had “shown substantial grounds for believing there is a real risk that his imprisonment in Romania would involve a flagrant violation of his article 5 rights and, if so, whether the [Romanian court] has sufficiently answered that concern”.

His trial was conducted in Bucharest by Judge Ion-Tudoran Corneliu-Bogdan (“Tudoran” for short). After complaints against the judge, Tudoran was investigated for alleged abuse of his office. In June 2019, he asked for permission to retire with effect from October. After press reports about his unexplained wealth, he said he wanted to retire sooner, in August, forfeiting some of his pension rights. He was allowed to retire in September 2019 but a prosecutor was unable to interview Tudoran in October because, by then, the former judge was in a psychiatric hospital. Further attempts to investigate Tudoran proved unsuccessful but, despite that, Popoviciu was unable to get his conviction set aside in Romania.

At the appeal court in London, Popoviciu claimed that Tudoran had, for many years, “conducted himself in a wholly unjudicial manner, and has been guilty of corrupt acts” — in particular when dealing with two men called Pirvu and Becali. “A key feature of the relationship alleged between Judge Tudoran and Becali is the soliciting of bribes,” said Holroyde. “Another key feature is the participation of the two men in illegal gambling.”

Despite the fact that some of the defence evidence was unconvincing, Holroyde found

credible evidence of at least the following allegations against Judge Tudoran: he had a long-standing relationship with Pirvu, in the course of which he had improperly and corruptly assisted Pirvu in legal matters; he also had a relationship over a number of years with Pirvu’s friend Becali, in the course of which he had again provided improper and corrupt assistance with legal matters; he had participated in illegal gambling sessions with both those men; and he had received one bribe and solicited another.

The judge said:

I cannot conclude on the balance of probabilities that these allegations are true; but in all the circumstances of this very unusual case, I accept that they may well be.

Moreover, the Romanian court had “plainly failed to put forward any evidence or information which dispels these concerns”. An investigation would have been expected, said Holroyde. “I also agree with Mr Fitzgerald that it is a surprising aspect of the Romanian criminal justice system if the late discovery of an undisclosed friendly relationship between a trial judge and an important prosecution witness ‘would not constitute a reason to review a final decision’.”

Holroyde concluded:

It is important to note that it is a particular, and unusual, feature of this case that the evidence does not show merely a relationship of friendship between judge and witness. It provides substantial grounds for believing that the relationship was also one which involved improper, corrupt and criminal conduct by a serving judge.

The evidence shows a real risk that the appellant suffered an extreme example of a lack of judicial impartiality, such that there can be no question as to consequences for the fairness of the trial. If there was such a relationship, Judge Tudoran clearly should not have presided over a trial in which Becali was the complainant and an important prosecution witness; but he did not recuse himself, and there was no disclosure to the parties even of the fact that the two men knew one another.

Comment

It’s easy to say that if this is the standard of justice in a country that has been an EU member since 2007, the UK is better off without the European arrest warrant. On the other hand Popoviciu’s extradition (strictly speaking, “surrender”) was ordered before the UK left the EU and the appeal result would have been the same regardless of Brexit.

That said, nobody could be sure that the appeal judges would find in Popoviciu’s favour: one question that troubled them was whether simple breaches of article 6 could be added together to produce a flagrant breach.

The real lesson of this case is a more chastening one: you don’t have to travel far to find judicial behaviour that would be unthinkable in the United Kingdom. It should also be unthinkable in the European Union.

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