“Of course, the nominative determinism of my own name is not lost on me,” said Carr. “Nor perhaps, should it be lost on my lady mayor, given that the city plays no small part in making London the disputes capital of the world.”

Among aims shared by the city and the law, Carr said, was a mutual interest in improving diversity. But that should come as no surprise:

The two enjoy one of the longest, beneficial connections in our proud histories. Long before the inns of court were a twinkle in justice’s eye, law was taught in the city. We have a relationship then that goes back to at least the 12th century. We are still waiting to hear which gemstone celebrates that particular anniversary.

The commitment of the judiciary, the government and the city to the delivery of justice for all “burns as brightly tonight as ever”, Carr told an audience that included the justice secretary David Lammy. “As long as we continue to think carefully about how to effect evolutionary improvements to our justice system — ones which draw on the best of the past to better secure the courts’ ability to deliver justice in the future — we will continue to enable our judges to do right by all, without fear or favour.”

News in brief

The government has postponed publication of at least two long-awaited reports commissioned by ministers from senior lawyers — apparently to avoid influencing the outcome of an election to the leadership of the Labour Party that everyone can see is never going to take place.

Even so, it has been a busy week so far:

Rajiv Menon KC

Mrs Justice Cheema-Grubb is expected to consider at the end of this month whether Rajiv Menon KC acted in contempt of court in his address to a jury on 8 January 2026.

Mr Justice Nicklin instituted proceedings on Tuesday after seeing material that he thought was “capable of supporting allegations that, in identified respects, the address departed from rulings made by the trial judge, or was in disobedience of them, in a manner arguably capable of interfering with, or creating a real risk of impeding, the due administration of justice”.

There’s a link to Nicklin’s ruling in the update to my report last week of an earlier ruling by the trial judge, Mr Justice Johnson.

Anurag Mohindru KC

Also on Tuesday, Johnson quashed the disbarment of Anurag Mohindru KC and substituted a period of suspension that has now been served. The judge said Mohindru’s “misconduct occurred many years ago, has not been repeated, and [his] subsequent conduct has demonstrated a sustained record of integrity. In such a case, public confidence may be maintained by a sanction which marks the gravity of the dishonesty without permanently excluding the practitioner from the profession”.

Shabir Ahmed

People are asking why the leader of the Rochdale grooming gang, who is due for release today after serving some 14 years of a 19-year sentence, cannot be deported.

Under section 3(5) of the Immigration Act 1971, a person who is not a British citizen is liable to deportation from the United Kingdom if the secretary of state deems his deportation to be conducive to the public good.

Under section 3(6) of the act, a person who is not a British citizen is liable to deportation from the United Kingdom if convicted of an offence punishable with imprisonment and recommended for deportation by a court the time of conviction.

But section 7 of the act creates exceptions to these provisions for Commonwealth citizens who were ordinarily resident in the UK when the act came into force at the beginning of 1973.

It says someone in that position is not liable to deportation under section 3(5) if at the time of the secretary of state's decision he had been ordinarily resident in the United Kingdom for the past five years

And he cannot be recommended for deportation under section 3(6) if he had been ordinarily resident in the United Kingdom for the five years preceding his conviction.

That’s understood to apply to Shabir Ahmed.

Although parliament is sovereign, there’s a widely held view that it would be wrong to subject an offender to a harsher punishment by changing the law after an offence has been committed.

It seems to me that deporting Ahmed now as additional punishment for his original offences would breach this principle.

Update 1630: Contrary to what I wrote earlier, I’m advised that the human rights court would not regard deportation in a case such as this as in breach of article 7 of the European convention. The court would see it as an administrative measure of public order by the secretary of state, not part of the punishment for the offence.

The costs of rape

Ms Justice Obi has dismissed a claim by the director of public prosecutions for judicial review of a costs order made at the Crown Court.

A man accused of rape was acquitted last year after a judge at Inner London Crown Court upheld a submission that there was no case to answer. Prosecutors were ordered to pay his legal costs of £97,000

At the time of the alleged rape, in 2018, he and the complainant were in a relationship. They lived in a shared house with other housemates but had separate bedrooms. They had consensual sexual intercourse one night. But the complainant, who was drunk, said she had withdrawn her consent just before she fell asleep.

The question for the High Court judge was not whether the decision to prosecute was one which no reasonable prosecutor could properly have made. That was a question for Judge Boyle, the trial judge. What Obi had to decide was whether the judge’s conclusion to that effect was one which no reasonable judge could have reached.

She concluded that his decision to award costs was not irrational.

CCRC

One of the first things that Dame Vera Baird KC did when she was appointed interim chair of the Criminal Cases Review Commission was to invite an independent inspectorate to examine its casework.

“Our findings do not highlight a failing organisation,” the inspectors say in their report this morning.

“While this report sets out 34 recommendations, the casework decisions in the 60 cases we examined were ultimately sound and reached the right conclusions in their recommendations to commissioners, the final decision-makers. However, we found several key issues that need to be urgently addressed, which will help the CCRC make better decisions more quickly, become much more efficient and gain greater assurance in the quality of its own casework.”

You can read my analysis of the report — and of the CCRC’s action plan, published this morning — in tomorrow’s Law Society Gazette. I’ll publish a link tomorrow and there’ll be a bonus for my paid subscribers.

Its Immigration and Asylum Bill, published yesterday, would create an organisation to be called the Independent Immigration Appeals Authority, referred to in the bill as the IIAA. This would be a “body corporate” — a corporation, rather than a court. It would take over immigration and asylum appeals currently heard by the first-tier tribunal, part of the courts and tribunals service.

The IIAA will employ an unspecified number of adjudicators, to be appointed by its chief executive. Adjudicators will be appointed on merit after a fair and open competition and undergo training but neither the adjudicators nor the chief executive need have legal or any other qualifications.

Senior adjudicators will need to be legally qualified, however, as will a professional standards officer and a chief appeals officer working for the new body.

Though the IIAA will be independent of the government, the home secretary will be able to ask it to expedite particular cases. It will have only limited powers to refuse.

Clause 10 of the new bill — which creates the power to charge for wasted resources — has been copied across from section 80 of the Nationality and Borders Act 2022. But there are two important differences:

1. The powers in the earlier legislation are exercisable only by legally-qualified tribunal judges.

2. Section 80 has never been brought into effect, so no wasted resources orders have been made under its provisions.

Wasted resources orders require a penalty to be paid to the government, like a fine. They are not to be confused with wasted costs orders, under which one party may be ordered to reimburse another party for legal work unnecessarily done.

Clause 10 says a person may be found to have acted improperly, unreasonably or negligently for the purpose of the wasted resources jurisdiction “by reason of having failed to act in a particular way”. What that means is not explained.

The bill’s explanatory notes say merely that the clause provides a “proportionate mechanism for the IIAA to respond where poor conduct by a party or representative creates avoidable delay or unnecessary work, while leaving the detailed operation and safeguards to be set out by the IIAA procedure rules board in its procedure rules”.

It’s not known why the earlier legislation was not brought into effect. But the provision is clearly intended to deter parties and their representatives from acting unreasonably and punish them if they do. The level of charges will not be set until after the legislation has been passed.

The IIAA “must exercise its primary function” — deciding specified appeals — “with a view to ensuring that justice is done”. It will be able to review its own decisions on its own initiative or on an application by a party — the applicant or the secretary of state — but only once. A party may appeal to the Upper Tribunal, with permission, but only on a point of law.

Comment

Questions have already been asked about the people who will apply for appointment as adjudicators. Will they be people who think there too many immigrants in the country? Or people from minority groups who think there should be more?

The Home Office is apparently looking for the sort of people who volunteer as magistrates, which will make it even harder for the Ministry of Justice to find the number of new magistrates needed under the Courts and Tribunals Bill. Unlike magistrates, the new adjudicators will be paid.

In the House of Lords on Monday, Baroness Deech KC (hon) argued that current tribunal judges — and the new adjudicators — should be “made to list their financial interests and any controversial, or even uncontroversial, organisations that they have joined”. Lord Pannick KC said he did not understand why the current arrangements for appointing tribunal judges were now considered inadequate.

“We are looking at widening the pool,” the minister replied. The bill requires adjudicators to declare any conflict of interest which is likely to affect their work prejudicially.

Article 8

Part 2 of the new bill deals with article 8 of the human rights convention, which protects private and family life. If the bill is passed, a new section 117AA of the Nationality, Immigration and Asylum Act 2022 will say that “a person’s family life for the purposes of article 8 is normally limited to their core cohabiting family”, as defined.

The government argues that these reforms will ensure that courts, tribunals and adjudicators operating in the UK will apply article 8 in line with the principles currently operated by the human rights court in Strasbourg.

The explanatory notes say the bill aims to establish “a firm but fair immigration system”.

Readers may remember that I reported last month on research by Blind Justice UK, a small charity that seeks to promote sound administration of the law. It examined recent cases that were closed at the assessment stage to see whether there were factors that might identify a future high-profile collapse.

The charity put its concerns to the regulator in an open letter 17 May. It said:

We have analysed the SRA’s own published enforcement data for 2023/24 and identified a significant accountability gap at the earliest stage of the regulatory process.

The core finding is this: in 2023/24, the SRA received 11,852 reports about solicitors and closed 8,317 before any investigation began. Only approximately 510 led to a regulatory finding, a net finding rate of around 4.3%. Since 2017/18, the proportion of reports referred for investigation has fallen from around 53% to around 15%. The volume of incoming reports has barely changed.

These figures alone do not prove that the SRA is closing reports it should be investigating. The concern is narrower and more serious: the SRA does not publish enough data to allow the public, the profession, parliament, or the Legal Services Board to test whether assessment-stage closures are safe.

The regulator replied to Blind Justice UK last Friday. It said:

We will be reviewing the application of our assessment threshold test this year to reflect our risk appetite and ensure the consistent application of our enforcement strategy. We are also developing a data and risk programme to further improve our capacity and capability to analyse large volumes of data quickly, identify emerging patterns across legal firms and prevent regulatory issues from escalating.

As part of this work, we will also be actively considering how best to improve the accessibility and usefulness of our published data at all stages of this process.

These changes are set against a backdrop of a significant rise in the number of misconduct reports we receive. Whilst your letter states that the volume of reports has barely changed, our experience shows that between November 2022 and October 2025, for example, there was a 45% increase in the number of reports we assessed, rising from 11,378 to 16,499.

Blind Justice UK said yesterday that this sharpened its point: more misconduct reports were arriving but fewer were being investigated. On the regulator’s own figures, the number of reports it assessed rose by more than 5,000 between November 2022 and October 2025. Yet the number referred for investigation has fallen: around 1,763 in 2023/24, down from around 6,027 in 2017/18 with no explanation given.

Edward Romain, founder and chief executive of Blind Justice UK, said:

We asked the SRA to publish the data behind its assessment-stage decisions. It has answered by declining to publish and by relying on a figure it has not published and that no one can verify. A regulator cannot answer a concern about transparency by being less than transparent.

If you haven’t heard about the justice secretary’s consultation paper on cohabitation, don’t be too hard on yourself; his proposals were slipped out on a Friday afternoon with little fanfare. Because, perhaps, the government was nervous about being seen to undermine marriage? That was the first question I put to Professor Sharon Thompson (pictured) when I interviewed her yesterday for the latest episode of A Lawyer Talks.

As she explained, the consultation paper is not just about cohabitants; the government is also planning to put nuptial agreements on a statutory footing and to codify the law on financial remedies following marriage or civil partnership. Will we see legislation along these lines? Or should ministers take another look at the details?

Thompson is professor of law at the University of Cardiff and author of a well-timed new book called The Road to Equal Partnership: Reforming the Financial Consequences of Divorce, just published by Bristol University Press. As you can hear, she has some interesting views on the government’s plans.

My regular podcast interview, as always, is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

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The notice, which refers to the BBC’s requests for disclosure of presidential documents, is also signed by an assistant US attorney in Florida — where Trump is suing the BBC over an edition of Panorama, broadcast in 2024, which he says edited a speech he gave in 2021 in a way that was “false, deceptive and defamatory”. It is hard to believe that federal and state officials would have intervened in the case without support from Trump or his personal lawyers.

This is how the notice begins:

A full version of the notice — including the signatures — can be read here. As can be seen from its header, more than 90 documents have already been lodged by the two sides in the litigation, which is not scheduled for trial until next year.

The more documents that are filed in these preliminary skirmishes, the more the costs rise. Each side generally has to bear its own legal costs in the US, win or lose. The BBC has not said how much it will have to pay its US lawyers for work done so far or how much they will charge if the case goes to trial.

Given the level of fees charged by US lawyers, though, it is reasonable to suppose that the potential costs involved could have helped fund several of the news and current affairs programmes that the BBC has decided to close in the next year. These include Radio 4’s low-cost replacement for Law in Action, which was dropped in 2024. For the first time since I launched that programme almost 42 years ago, the BBC will no longer have a regular broadcast dedicated to coverage of legal developments — such as Trump v BBC, for example.

Comment

When the BBC apologised to the US president last November — and before he put a figure on the damages he was seeking — I wrote this:

The BBC is putting the president to proof, as the lawyers say: challenging him to produce evidence that the programme was seen in the United States and that, as his lawyer claimed, he suffered “overwhelming financial and reputational harm” from it.

It remains to be seen whether the president will treat the BBC’s response as a challenge he must rise to or simply bank the personal apology and move on.

If Trump does issue legal proceedings, a settlement will become more expensive. On the other hand, there seems little point in going to court to defend what the BBC admits was an error of judgment, even if the corporation believes Trump’s claim will ultimately be dismissed.

Perhaps I was being too measured. I spent 25 years on the staff of the BBC and old habits die hard. My view then was that the BBC should have settled Trump’s claim before he launched legal proceedings, as the broadcaster must have expected he would. That’s what news organisations routinely do when they receive a defamation claim from a wealthy claimant — even if they can prove the truth of what they published. It’s generally cheaper in the long run.

The BBC now has a new director general. Matt Brittin has presumably returned from the holiday he was taking when the programme cuts were announced on 17 June. If he intends to continue fighting the US president and now the US government in the US courts over an admitted error of judgment for which his predecessor was responsible, he should tell licence-payers why it’s more important for the BBC to spend our money on its US lawyers than on its coverage of the law.

MacLeod, who was born in Australia, returned to live there in 2020. She refused an invitation two years ago to give oral evidence to the Post Office Horizon IT Inquiry, either in person or through a video-link. Because she was abroad, the inquiry chair Sir Wyn Williams was unable to compel her attendance.

MacLeod declined to comment in 2024 when she was doorstepped in Sydney by the BBC.

The Solicitors Regulation Authority decided to take action against MacLeod last November but disclosed this only yesterday. It generally announces a referral only after the tribunal has certified that there is a case to answer

A glance at its most recent regulatory announcements reveals that only a small proportion of disciplinary actions are referred to the tribunal; most are dealt with by the Solicitors Regulation Authority itself. The tribunal has some wider powers than the regulator: it can impose larger fines as well as prohibiting solicitors from practising.

Cases are referred to the tribunal only where there is realistic prospect of the tribunal making an order and it would be in the public interest to make the application, according to the regulator. The tribunal will not make an order unless the conduct complained of is found to be serious enough and is proved on the balance of probabilities.

Although the regulator refers to this as a “prosecution”, it does not bring criminal proceedings. While MacLeod remains outside the United Kingdom, it is hard to see how the tribunal could require her to attend a hearing in London or pay any fine it may impose.

The Solicitors Regulation Authority also announced proceedings against Nick Gould. He was not a Post Office lawyer but represented former postmasters wrongly accused of dishonesty.

Gould is accused by the regulator of failing to provide adequate information about costs relating to work done for unnamed clients.

He is also accused of sending inappropriate correspondence and breaching a duty of confidentiality. He declined to comment yesterday when approached by reporters.

Jonathan Peddie, executive director of investigations, enforcement and litigation at the regulator, said:

We have referred two cases to the Solicitors Disciplinary Tribunal. The cases refer to conduct that took place in the period after the main events of the Post Office Horizon scandal.

Our wider investigations are still ongoing. This includes issues relating directly to the Horizon scandal, where we are working closely with the inquiry team and the Metropolitan Police. We can and will act if we find that solicitors we regulate fail to meet our standards.

The Solicitors Regulation Authority is investigating 20 cases involving prosecutions of postmasters by solicitors, The Times reported in April. The Bar Standards Board was said to have 10 investigations on the go relating to barristers. No announcements relating to these cases have yet been made, presumably because regulators are waiting for the outcome of police investigations or publication of the inquiry’s final report.

Update 1130: a reader has alerted me to R (UCPI Designated Lawyer Officers Core Participant Group) v Sir John Mitting, in which the High Court held on 9 June that an inquiry chair has power under the Inquiries Act to require the attendance of a witness who is abroad. It does not follow, however, that this power can be enforced if the witness remains out of the jurisdiction.

What will Hermer be remembered for? The one decision he owned up to in a confident and assured performance before the Commons justice committee on Tuesday was to stop using the social media platform X. He told MPs:

I can understand why other departments feel they need to be on the pitch, engaging with people, but that is not where the attorney general’s office needs to be.

I think that, for the work that I can do, I can engage with people in serious debate, detailed debate, respectful debate without being on a platform that constantly descends to racism and misogyny.

I think my department can do better than that.

I am happy to welcome Hermer to Bluesky, where he posts in his own name. But I see that attorney general’s account on X remains live, waiting for the next incumbent. Who will that be?

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Reimagining Employment Dispute Resolution and Enforcement has three authors: Dr Maayan Menashe, who’s senior lecturer in law at City St George’s, University of London; Sarah Fraser Butlin KC who practises from Cloisters chambers; and Catherine Barnard, professor of European Union and employment law at the University of Cambridge.

Barnard (pictured) is an old friend and I was delighted to interview her yesterday for the latest episode of A Lawyer Talks. My podcast interview — recorded at breakfast time, as you may hear — is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

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Johnson had originally made a direct reference to the High Court of comments made by Rajiv Menon KC, a procedural move which the Menon’s counsel had successfully challenged in the Court of Appeal. I reported last month that appeal judges had left Johnson with three options: to refer the alleged contempt to the attorney general; to refer it to the Bar Standards Board as an alleged breach of the barristers’ code of conduct; or to take no further action.

In a judgment published yesterday, Johnson rejected those options — concluding that action was needed but deciding that the first two options would take too long. Instead, he relied on a fourth option mentioned by the Court of Appeal — to refer the alleged contempt to another High Court judge, sitting as a judge of the Crown Court, for the initiation of summary contempt proceedings.

Following a hearing last Friday which Johnson sat as the trial judge, he dismissed submissions by Adrian Waterman KC that it was now too late to initiate contempt proceedings. Although Johnson is himself a presiding judge, he accepted Waterman’s argument that he should not select the judge who would take on the case.

Accordingly, Johnson said:

this matter will now be referred to another presiding judge. Mr Waterman suggested that, to ensure consistency, it should be a presiding judge on the South East Circuit who has responsibility for criminal matters. I do not consider that is essential.

What is more important is that it is a presiding judge who is available and has capacity to deal with the matter expeditiously. I will ask the Office of the Senior Presiding Judge to identify a presiding judge and I will direct the court officer to refer the matter to that presiding judge.

That presiding judge can then decide, after considering this judgment and the existing papers, whether they consider it appropriate to institute contempt proceedings. If so, they may do so either by way of an order in the form appended to this judgment, or in such other form as they consider appropriate. They can then arrange for the hearing to be assigned to a High Court judge sitting in the Crown Court.

But Johnson added an important qualification:

I stress that nothing in this judgment decides that Mr Menon has acted in contempt of court. That can only be decided if contempt proceedings have been instituted and then only if a judge finds that a contempt has been established to the criminal standard of proof.

Nor have I decided to institute contempt proceedings. I have, instead, decided that the papers should be referred to a presiding judge in order to determine whether contempt proceedings should be instituted.

In reaching that conclusion I have necessarily considered whether certain threshold conditions are met: that there is a case to answer in contempt, that contempt proceedings are in the public interest, and that it is more appropriate for the court to institute contempt proceedings than to refer the matter to the attorney general.

This will, however, all be for the presiding judge to decide: my findings do not bind the presiding judge. The presiding judge will only institute contempt proceedings if they consider that is the appropriate and justified step.

In an appendix to yesterday’s judgment, Johnson quoted seven pages of submissions made by Menon on 8 January as counsel for Charlotte Head at her first trial, marked to indicate the passages the judge thought were incompatible with rulings and directions that he had given earlier in the hearing.

Garden Court Chambers said last night:

The unprecedented contempt of court proceedings brought against Rajiv, a senior silk and former head of chambers, undermine and diminish our system of criminal justice.

The administration of justice depends upon an independent bar willing and able to act in the best interests of their clients, fearlessly and with integrity.

This attempt to criminalise a member of the bar over the contents of a closing speech made in defence of their client has sent shock waves through the legal profession.

The impact of these proceedings is already being felt by the criminal defence community, especially juniors, with concerns that public confidence in the independence of the bar and the integrity of our system of justice will be damaged.

The original contempt proceedings, which were subsequently found to have been brought unlawfully, were initially subject to reporting restrictions and were pursued as Rajiv’s client, one of the Filton Four, was facing re-trial and subsequent sentencing.

Despite the concerning nature of the attempt to prosecute him, Rajiv’s absolute priority throughout has been the discharge of his duty to represent his client fearlessly and to do everything possible to seek the best outcome for his client.

Support for Rajiv from the bar and the wider legal community has been overwhelming. Many friends, colleagues, and supporters have spoken up, attended hearings and expressed their solidarity with Rajiv.

After a day-long hearing, Mr Justice Jeremy Johnson’s order of today, 22 June, will lead to Rajiv being referred to a presiding judge for his or her consideration of whether to pursue a criminal prosecution against him for contempt of court.

We now await the outcome of that as the next step in this already protracted process.

Whatever happens, Garden Court Chambers will continue to support Rajiv through this difficult time.

Do right. Fear no one.

• Thanks to the reader who pointed out that it’s the Crown Court that is being asked to decide this case, not the High Court as I wrote originally.

Update 30 June: Mr Justice Nicklin has instituted contempt proceedings. Menon has been ordered to appear before Mrs Justice Cheema-Grubb on 28 July. A hearing has been listed for two days.

In a lecture last night at Inner Temple, Sharp offered a technical explanation of what AI does — and what it cannot do. She said:

Modern large-language models do not reason as lawyers or judges reason. They convert text into tokens; represent those tokens mathematically as embeddings; and use transformer architectures, including self-attention mechanisms, to weigh the relationships between words or sub-words in context.

They are trained on immense datasets to predict the next token or sequence of tokens most statistically likely to follow. Further processes — fine-tuning, reinforcement learning from human feedback, system prompts, retrieval tools and safety filters — may shape the output. The result can be astonishingly and beguilingly fluent, but false.

Fluency is not truth and coherence is not judgment. An explanation generated after the event is not necessarily the reason for the original output either.

AI might be useful to a judge for summarising material, translating text, locating cases already known to exist or managing large quantities of documents, she acknowledged, provided confidentiality, accuracy and responsibility were preserved. But there was a difference between assistance and influence.

“The danger is not merely that an AI system will make a crude mistake. It is that it will produce an attractive formulation which subtly narrows the judge’s own analysis.”

There was also the risk of automation bias, she continued:

Judicial independence requires not only freedom from direct pressure but freedom from hidden dependencies that shape the answer before the judge has fully reasoned her way towards it.

Nor are AI systems value-neutral. The datasets selected, the material excluded, the categories used in annotation, the reinforcement signals chosen, the safety policies imposed, the retrieval sources connected and the commercial incentives of the provider affect outputs.

A model trained on historic legal material may reproduce historic inequities. A model optimised for speed and settlement may undervalue the need for a public hearing. A model procured by the executive may, without impropriety, reflect executive priorities.

And this could lead to system capture:

The danger is not a dramatic coup by machine. It is of a gradual drift: standardised prompts, standardised summaries, standardised risk scores and eventually standardised dispositions. A court system may appear formally independent while its informational architecture has been captured by technology we cannot inspect, challenge or control…

Judicial independence includes deciding cases according to law rather than executive performance metrics.

Court users

Turning to court users, Sharp accepted that AI could improve access to justice by helping people to understand their rights, to draft documents and to navigate unfamiliar procedures.

But, she continued, “every jurisdiction — including the courts for which I am responsible — is experiencing a boom in lengthy applications from litigants-in-person or sometimes less-than-well-qualified legal advisors. Each of those applications requires careful judicial appraisal and many, I am afraid, are rather less than legally sound. All of it puts a strain on a system that is already under-resourced.”

Sharp was also concerned at how easy it had become to generate fake evidence:

Fabrication that once required specialist skill may now be available to an ordinary litigant with a smartphone. A forged email chain, a synthetic voicemail, a manipulated CCTV clip, a fake social media exchange or a false expert-looking report may be produced quickly and cheaply.

As synthetic evidence becomes more familiar, genuine evidence may be dismissed as fake. A truthful recording may be attacked as AI-generated. A real photograph may be said to be synthetic.

Improperly used, AI can create false evidence and, unchecked or unregulated, it can destabilise confidence in the entire process of judicial adjudication.

Important safeguards had already been put in place, she acknowledged. But more would be needed. “The world, and not merely the judicial world, is playing catch-up with an accelerating technology.”

Judicial appointments

In other countries, she observed, the capture of the courts had begun not with soldiers at the courtroom door but with changes to the way judges were appointed, promoted, disciplined, retired or replaced. The creation of the Judicial Appointments Commission in England and Wales was therefore one of the most significant changes effected by the Constitutional Reform Act 2005.

That legislation requires the commission to select candidates “solely on merit”, she noted:

Appointment on merit does not of course mean a narrow reproduction of the familiar or appointing only those who look, sound, think and practise like judges of an earlier generation. Were that the case I would not be standing here.

Nor does merit stand in opposition to diversity. I hope I may be forgiven for saying “ditto”.

It means identifying those who possess the intellectual and personal qualities required to be a judge: independence, integrity, legal ability, fairness, courtesy and courage.

It’s not clear whether Sharp was aware that Lynne Berry CBE, the incoming chair of the Judicial Appointments Commission, had recently appeared to equivocate on whether merit should be the sole criterion for appointment.

The future

“The future of judicial independence will depend on what is done rather than what is said,” Sharp concluded:

Nevertheless, it needs constant explanation — in schools, in parliament, in the press, online — by the legal profession, by academics, by responsible journalists and, where appropriate, by judges.

A judiciary that cannot explain its constitutional role risks that role being defined by others. But explanation must be disciplined.

Judges must not become political actors or enter the partisan arena. But we can explain why reasons matter and why personal attacks on judges harm the public interest, not the judge alone.

We should insist on institutional protection where protection is necessary. Responsible reporting of judgments is one of the practical safeguards of judicial independence as it enables informed criticism to take place.

Judicial independence is, as Sir Henry Brooke described it many years ago, a fragile bastion; and one that it is in everyone’s interests to protect.

In what may be seen as her personal credo, Sharp ended her lecture by quoting words from the oath taken by all judges.

“Without fear or favour” is a promise to the public that a case will be decided by law — by an independent and impartial judge. Challenges to it are nothing new. That independence is continually tested; and that will remain the case.

Our answer must be constitutional steadiness. To judge without fear or favour is not to stand above society. It is to serve society in the particular way the constitution requires: by doing right according to law.

That task remains difficult — but indispensable.

The group had wanted to prosecute the unnamed man under the Foreign Enlistment Act 1870. But Senior District Judge Goldspring ruled in April that the Victorian criminal legislation “simply does not apply to the facts as alleged”.

Although the would-be prosecutor must pay costs, the judge declined to order the group’s former solicitors and counsel to contribute to the intended defendant’s legal fees.

That came after the solicitors, Bindmans, disclosed that they were conducting an internal review and had reported themselves to their regulator. However, Goldspring said in a preliminary judgment delivered at Westminster Magistrates’ Court on Friday that he was “not entirely convinced that the firm acted to the standard to be expected in relation to disclosure”.

Simon Ray KC, representing the solicitors, told the court that Bindmans could not provide even a partial response to the claims against the firm — much less “tell the whole story” — because its former clients, the International Centre of Justice for Palestinians, had refused to permit this by waiving their privilege.

However, said counsel, “Bindmans are not attempting to avoid scrutiny of the firm’s role in the attempted prosecution… Bindmans have provided the contents of Senior District Judge Goldspring’s judgment to the Solicitors Regulation Authority and obviously will cooperate with any resulting regulatory investigation.”

The International Centre of Justice for Palestinians, which describes itself an an organisation of lawyers, politicians and academics who support and protect the rights of Palestinians through law, apologised both to the court and to the proposed defendant for failing to comply with the duty of candour required of a private prosecutor.

“The ICJP acted in good faith throughout but made significant misjudgements about the material that it was appropriate to disclose on this application,” its new counsel Mark James told the court.

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Does Huda Ammori have any chance of winning in the courts now? And where does the ruling leave well over 3,000 people who have been arrested on the streets? Those are among the questions I address in my column for today’s Law Society Gazette.

A week ago, four Palestine Action activists were given substantial prison sentences after a retrial. Their first prosecution had ended without convictions on any charges. What does that tell us about the state of jury trial in England and Wales?

On Tuesday, the Telegraph published a lengthy essay in which I explored this issue. You can read that, too, online.

I make the point at the end of the piece that the government’s planned jury reforms are unlikely to take effect in their present form. We now know that the Courts and Tribunals Bill’s third reading debate will not be held until July at the earliest. Andy Burnham’s decisive victory in Makerfield makes it less likely that the reforms will take effect at all.

Sir Francis Bacon was one of the most influential figures in British intellectual history and a lawyer whose life and career were deeply intertwined with the inn of court where he felt most at home. As I reported at the time, Gray’s held a dinner last month to mark the 400th anniversary of his death. Rylance was one of the guest speakers.

“I congratulate you,” he told members of the inn and their guests. “If the works of Shakespeare had not been attributed to the apparently uneducated and untravelled William Shagspar of Stratford upon Avon in 1623, I put to you that Sir Francis Bacon would be our primary suspect.”

Rylance acknowledged that this was a heretical position to take. But, he continued:

A heretic needs a religion, and the love of Shakespeare has become in many respects a religion, with an immortal god at its head. But still, it was a mortal man who created these immortal works — or perhaps it was some mortal men, and women too. Francis kept a group of writers he called his good pens, as did Mary Sidney, his neighbour as a child in York House.

By contrast, there was no evidence of Shakespeare’s education and very limited evidence of life experience. “You cannot write without revealing both,” Rylance said. “The parallels between the vocabulary, life experience and ideas of Shakespeare and Bacon, on the other hand, are striking.”

The claim that Bacon wrote Shakespeare first appeared in the 19th century and has been widely discredited since then. But Rylance believed that Bacon would be given his due by the time Gray’s marked the 500th anniversary of his death.

He was clearly delighted by his invitation to celebrate a tangible link with his hero. I’m told he stayed to the very end, happy to be photographed with other guests. As an honorary bencher of Gray’s myself, I’m sorry I wasn’t free that evening to join the celebrations in the gardens that Bacon first laid out.

Talking of actors, readers who have subscribed to this Substack since I launched it nearly six years ago may remember that in one of my more whimsical pieces in 2021 I worked in a reference to The Dock Brief, an early play by Sir John Mortimer than inspired him to create Rumpole of the Bailey. I found another opportunity to write about this cleverly plotted two-hander a year or so later.

So I was delighted to see that the play is being revived, for one night only, as a fundraiser for the Kalisher Trust — about which I wrote on Monday.

The reading in Middle Temple Hall on Sunday 26 July starts with a reception at 5.30pm. Tickets are still available.

Some areas of homicide law have remained unaltered since the seventeenth century. Parliament has never undertaken a structural reform of homicide and has never provided statutory definitions of murder and manslaughter — which remain offences under common law alone. However, in December 2024 the then home secretary Shabana Mahmood announced that she was calling in the Law Commission again.

Today’s 238-page consultation paper deals mainly with the structure of homicide offences. It will be followed next summer by a consultation paper looking at defences and sentencing. Final recommendations to government are expected in 2028.

Professor Penney Lewis, the commissioner for criminal law, said:

Homicide offences in England and Wales have never been the object of a coherent and structured reform and the law has not kept pace with what society now understands about culpability, domestic abuse and the consequences of dangerous conduct.

This review offers a timely opportunity to modernise the law and to build a fairer and more proportionate framework that reflects the degrees of culpability of offenders. We want to hear from as many people as possible with experience in this area before we make our final recommendations.

All the proposals are provisional and responses are invited before the end of September.

Three-tier justice

Instead of the present division between murder — for which life imprisonment is mandatory — and manslaughter, for which it is optional, the commission is proposing three tiers of homicide:

• First-degree murder, if the defendant intended to kill. Life imprisonment would be mandatory, as at present.

• Second-degree murder, if the defendant killed with the intention of causing serious injury. An offence would also come within the second tier if the defendant had been charged with first-degree murder and a partial defence proved successful.

• Manslaughter, comprising reckless manslaughter, unlawful dangerous act manslaughter and gross negligence manslaughter. These cover cases of unlawful killing where there was no attempt to kill or cause serious injury.

Life imprisonment would be discretionary rather than mandatory for all but first-degree murder. Those who intend to kill or cause serious injury would continue to be convicted of murder. But the judge would not have to pass a life sentence if there was no intention to kill.

Partial defences

At present, a partial defence reduces murder to what’s called voluntary manslaughter.

For example, Valdo Calocane, who killed three people in Nottingham in 2023 and tried to kill three others, pleaded guilty to three counts of manslaughter on the grounds of diminished responsibility — as well as three counts of attempted murder. He received an indefinite hospital order. That led to public concern.

Reducing murder to manslaughter is irrational and confusing, the commission says. So it proposes that a partial defence — such as diminished responsibility — would reduce first-degree murder to second-degree murder. There would be a new jury verdict of “murder with a partial defence”.

Reckless manslaughter would be charged if the defendant was aware of a risk of causing death or serious injury and unreasonably ran that risk. Unlawful dangerous act manslaughter would apply to a defendant who intended to cause some injury or was reckless as to whether some injury was caused. And gross negligence manslaughter would be charged if a defendant’s conduct was truly exceptionally bad, falling far below what could reasonably be expected in the circumstances.

Other offences

There are specific homicide offences such as causing death by dangerous driving and causing or allowing the death of a child or vulnerable adult. These would be retained.

Uniquely, infanticide is both a specific offence and a defence to murder or manslaughter. It too would remain unchanged.

There have been suggestions that the term “manslaughter” should be replaced and so the Law Commission is inviting views on alternative terminology. The terms “first-degree murder” and “second-degree murder” could also be changed.

The commission has not made provisional proposals to reform the law of complicity (sometimes called “joint enterprise liability”) because this law does not apply exclusively to homicide. However, it says the proposed changes to the structure of homicide offences would, in some cases, make it easier to distinguish between the culpability of a principal offender (who committed the fatal act) and an accessory (who assisted or encouraged the principal offender), resulting in more proportionate sentences.

The annual Gray’s Inn reading is usually given at the invitation of the inn’s treasurer — its elected head. This year, the treasurer is McFarlane himself. Having recently retired as the most senior family judge of England and Wales, he now felt able to call for government action in areas he regarded as ripe for reform. In some areas, though, government ministers had got in ahead of him while he was writing his lecture.

Codify and clarify, not change

On 5 June, the justice secretary David Lammy published a consultation paper on reforming financial remedies on divorce and strengthening protection for former cohabitants.

As McFarlane explained, the main aim of the proposed reforms is to provide a clearer framework for divorcing couples — as well as those whose civil partnerships are dissolved — so it it will be easier for them to resolve financial issues without going to court.

The approach taken by the courts has changed a great deal since the most recent statutory reforms over 50 years ago and the government’s aim is to codify and clarify current practice rather than to change it.

Fairness will be the overarching objective, with matrimonial property shared equally unless adjustments are needed to meet one party’s needs. The welfare of any child would be considered first and legislation would seek to protect the financially vulnerable, including victims or survivors of domestic abuse.

“The aim of achieving greater clarity and predictability for divorcing couples is obviously a sound one,” McFarlane commented, “but the task of codifying the current approach without introducing fresh ambiguity, rather than removing it, will be a difficult one for the parliamentary drafting team.”

Pre-nuptial agreements

As McFarlane recalled, Baroness Deech and Baroness Shackleton have been among lawyers campaigning for years to make pre-nuptial agreements legally binding. The government agrees — but it says there must be clear statutory safeguards to prevent the vulnerable from being coerced into nuptial agreements and to ensure parties understand the legal consequences of signing. It sets out what it has in mind.

McFarlane, who is supportive of the Deech-Shackleton campaign and the Law Commission’s recommendations, said “the case for providing a default position whereby a validly created pre- or post-nuptial agreement is binding, subject to exceptions, will give greater clarity and may well encourage more couples to focus on their financial arrangements at a more tranquil stage of their relationship than is often the case at present.”

Cohabitation

“In contrast to the sophisticated, flexible and wide powers of a court at the end of a marriage or civil partnership,” he continued, “cohabitants are forced to rely upon a patchwork of legal rules drawn from property, trust and contact law to pursue any claim for financial relief.”

When children were involved, he added, there was a central unanswerable question: why should the financial arrangements for children and their main carers differ so radically depending on whether or not their parents were married?

As McFarlane observed:

The government’s proposals for introducing some limited rights for former cohabitants to apply for an adjustment of their respective property rights following separation have been carefully couched so as to provide something more than the current lack of remedy but significantly less than the rights that attach to those who have been married or in a civil partnership.

The former judge acknowledged that enhancing the rights of cohabiting couples risked “igniting opposition from those who seek to uphold the sanctity and status of marriage”. But it was not acceptable for the level of financial support for children to turn on whether or not their parents had been married.

Enduring relationships

On 4 June, the Department for Education launched a policy paper on enduring relationships for children in care. Josh MacAlister, the minister for children and families, said that “the purpose of the children’s social care system must be to build, protect and sustain children’s enduring relationships, so they can feel safe, supported and able to thrive.”

McFarlane observed that the government’s paper made no reference to adoption. But, despite major changes in society, adoption law had changed little in the past 50 years.

Children who came forward for adoption were no longer likely to be babies given up at birth by unmarried mothers; they were now older and more likely to have been taken from their birth families to protect them from abuse. They too might benefit from an enduring link with their birth families, he thought, provided it was safe to maintain this.

Surrogacy

“The law relating to surrogacy in England and Wales has not been the subject of any substantive amendment for over 30 years,” McFarlane said. “During that time, the public attitude to surrogacy has moved from regarding it as very much on the fringes, being largely confined to informal arrangements, to a position where it is now seen as part of the range of options available to those seeking assistance to become parents.”

Because would-be parents are not allowed to pay more than reasonable expenses, they are turning increasingly to commercial agencies abroad. But things could go very wrong. He had dealt one such case that generated a high level of concern last year and which I reported in full at the time.

These cases “starkly demonstrate the degree to which our courts are being obliged to accept commercial foreign surrogacy arrangements despite such arrangements being unlawful domestically”, McFarlane said. And Law Commission recommendations in 2023 did not address the problem of foreign surrogacy:

There is, I suggest, an obvious disconnect between a law which prohibits domestic commercial surrogacy — prohibits any payments other than for expenses — yet accepts that if a child has been born through a foreign commercial surrogacy arrangement, where the baby has plainly been bought for a commercial price, the English court will make a parental order.

If parliament reformed domestic law, McFarlane very much hoped it would “call out the commercial elephant in the room and address the issue in clear terms”.

In this area, at least, there seems very little risk of a government policy announcement before the former family judge delivers his next call for action.

New appeal judges

Seven new appointments to the Court of Appeal were announced on Friday. In alphabetical order, they are:

• Mr Justice Butcher,

• Mr Justice Chamberlain,

• Mr Justice Fancourt,

• Mrs Justice Farbey,

• Mrs Justice Lieven,

• Mr Justice Meade and

• Mr Justice Saini.

All will be well placed for further promotion in their respective specialisms. But Martin Chamberlain is the judge I have tipped for the very top since his appointment six years ago:

He also takes a refreshingly relaxed approach to judicial portraiture:

A well-deserved honour

Dr Camilla Darling was appointed OBE in the King’s birthday honours. Currently director of research development in arts and sciences at King’s College London, she was honoured for her work at the Kalisher Trust. Founded to support those who aspire to become criminal barristers, the trust helps, encourages and inspires young people to achieve their potential through the development of positive advocacy skills.

Her five-year stint as vice-chair of the trustees was the culmination of nearly 20 years of volunteering. When I was involved with the trust some years ago, it was run by criminal lawyers and Old Bailey judges who remembered working with Michael Kalisher QC until his death in 1996 at the early age of 55. These days, the trust also draws its leadership from those involved in the world of education.

Sir Ralph Waller KBE, director of the Farmington Headteachers Institute at Jesus College, Cambridge, chaired the Kalisher Trust from 2019 to 2023. Of his vice-chair at the time, he says:

She was totally committed to the aims of the trust, which are to encourage young people from diverse backgrounds to think of applying for the criminal bar. She realised that too often many young people do not think they have the ability and the talents to apply.

She took Kalisher to disadvantaged schools all over the country and helped transform many young lives. One young woman had underestimated her ability and was aiming at a career below her talent. With the right encouragement and mentoring, she is now a solicitor and a partner in her firm.

Camilla built a six-week advocacy course for pupils and bar finalists, engaging professionals in voice and stagecraft — as well as barristers and judges — to teach delivery, reaction and composure under pressure. The final all-day clinic at the Old Bailey is run by young trustees, with a senior judge giving feedback on pupils’ cross-examination and pleas in mitigation. Every graduate is a stronger ambassador for the profession.

In primary schools, videos produced by the Kalisher Trust demonstrate fairness, morality and justice in a way that seven year-olds can understand. Familiar stories have been adapted with the help of psychologists. Children watch them and then discuss the issues they raise with their teachers.

Very early on, Camilla recognised knife crime as a nationwide problem. She set up a research collaboration with the University of Derby and helped to create a short video documentary to widen understanding of the consequences of knife crime — human and legal — for the trust’s audience of secondary school students

In 2020, Camilla instituted an annual clothing fair. She persuaded a lady justice of appeal who was about to retire to donate her formal wardrobe. Other professionals were encouraged to follow suit. The clothes go without charge to young people starting at the criminal bar. This has been a huge success.

Camilla had been involved with the Kalisher staged readings since she was an undergraduate. Well-known actors read plays at Middle Temple to raise funds and promote the work of the trust. She commissioned new pieces on major issues to give young writers an opportunity to establish their reputations by writing works for professionals.

National recognition of Darling’s work, Waller added, would make all her friends and colleagues very happy. “She thoroughly deserves this honour for the hard work and dedication she gave to the Kalisher Trust and through it to the criminal bar, to young people and to wider society.”

Anyone reading this might think that the activists were convicted of terrorism offences or, at the very least, that their sentences were substantially increased because Palestine Action was subsequently banned as a terrorist organisation. Neither is true.

All four defendants had been convicted of causing criminal damage to a factory near Bristol owned by Elbit Systems, an Israeli company. The cost to its insurers was well over £1 million.

Last Friday, Charlotte Head, 30, and Leona Kamio, 30, received sentences of six years for their role in the attack. Fatema Zainab Rajwani, 21, was sentenced to five years and eight months. Samuel Corner, 23, also received five years for criminal damage and a further three years and eight months, to be served consecutively, for fracturing the spine of Police Sergeant Kate Evans with a sledgehammer.

In sentencing them, Mr Justice Johnson adopted a starting point of five years — half the maximum set by parliament. He then had to take aggravating and mitigating factors into account. We can see that these factors largely balanced each other out for the younger defendants. For the older two, aggravating factors outweighed mitigating factors by just one year. Mitigating factors for all four defendants included their “positive good character”.

An aggravating factor singled out by the judge was that the offenders were on the premises as trespassers: they “used extreme force and aggression to break in, deliberately using a large vehicle as an instrument of destruction, driving the van through two security fences and through the shutter of the loading bay”.

If an offence has a terrorist connection, that must be treated as an aggravating factor. Since 2021, this legislative requirement has applied to all offences punishable with a maximum sentence of more than two years.

An offence has a terrorist connection if it is committed for the purpose of terrorism. And terrorism is defined to include serious damage to property that is designed to influence the government for the purpose of advancing a political or ideological cause.

That was established here, said the judge. But it didn’t make much difference in the end. In a strikingly generous assessment of the offenders’ motives, Mr Justice Johnson told all four of them:

It is an aggravating factor that the offending had a terrorist connection.

In measuring the increase to the sentence on account of that factor I take account of the fact that you did not intend to injure any person, and that part of your motivation in taking action was to prevent the death and suffering of Palestinian civilians, including children.

That significantly reduces the increase in the sentence that would otherwise be appropriate.

Before the activists were sentenced, leading lawyers had claimed that the aggravating factor was a “constitutional threat”.

“It’s a recategorising the offence without a trial,” one said. “It’s particularly insidious for the obvious reason that they weren’t allowed to explain their motivation to a jury — that was denied them. And yet the state says ‘we’re actually going to elevate what the offences are’ when a jury might well not have convicted had they known they were going to be treated as terrorists.

“The fundamental principle is you should not be convicted on any statutory offence for which you have not been charged.”

This is nonsense. The offence of criminal damage — the statutory offence on which they were convicted — has not been recategorised. Parliament has simply instructed sentencers to take account of an additional aggravating factor that may apply in a wide range of offences.

And there is no justification for saying the jury should have been told about this provision in the Sentencing Act. A jury’s job is decide whether an offence has been committed. It has no role in sentencing.

Moreover, it was the defendants who asked for this factor to be kept from the jury. As Johnson told the defendants on Friday:

At the outset of the case, and at the request of the prosecution, and after hearing legal argument, I ruled that it appeared that the evidence on the indictment revealed that your alleged offence of criminal damage had a terrorist connection. As I made clear at the time, that ruling had procedural consequences but did not have any effect on the trial or any sentencing.

Legislation prevented the reporting of that ruling. You asked me not to lift the reporting restriction because you were concerned it might cause prejudice. I agreed to your request not to lift the reporting restriction at that stage, even though there was a strong public interest in permitting reporting.

Friday’s sentencing hearing was delayed but Johnson’s full sentencing remarks were circulated to reporters at 7.15pm. They are well worth reading — particularly by those who have been putting it about that these offenders were sentenced “as terrorists”. They were not.

Update 1300: The Court of Appeal has allowed an appeal by the home secretary against a decision by the High Court in February to lift the ban on Palestine Action. The judgment is here and there is also a press summary

In the employment tribunals, the number of outstanding claims brought by individuals was 64,000 at the end of March, an increase of 55% compared to the same period in 2024/25.

“It is alarming to see employment tribunal backlogs continuing to spiral,” the president of the Law Society of England commented yesterday. Mark Evans said that prolonged periods of uncertainty were likely to take a high toll on both individuals and businesses. “The situation remains urgent,” he added.

Employment lawyers say the latest figures reflect a system that is struggling to keep pace with demand. Imogen Finnegan of Bellevue Law said claims were still outpacing resolutions and the backlog was continuing to build. Adele Martins of Magrath Sheldrick said hearings were being scheduled for 2029 and even 2030.

To ease pressure in asylum and immigration cases, the home secretary Shabana Mahmood is expected to introduce new legislation “within weeks” to make it harder for rejected asylum seekers to use article 8 of the human rights convention — the right to family life — when appealing against their removal from the UK. A new appeals body is planned, whose adjudicators will include non-lawyers.

Chief’s concerns

In oral evidence to the Lords constitutional committee on Wednesday, the lady chief justice expressed concern about backlogs in three particular tribunals. She mentioned:

the first-tier tribunal immigration and asylum chamber, where receipts continue to arise at an ever-alarming rate. SEND, the Special Educational Needs and Disability Tribunal: I am told that between 2011 and 2023 the volume of appeals registered has increased by almost 500%. And the employment tribunals: again, huge increases in the number of receipts.

Baroness Carr pointed out that two tribunals could expect an increase in work as a result of new legislation. “We have the Renters’ Rights Act, which is going to increase the burden on the property chamber in particular… Also the Employment Rights Act is going to have a huge impact on the employment tribunals.”

"As you say,” Carr told the former first minister of Wales Lord Jones of Penybont, “it’s very important to understand the context in which judges operate.”

She continued:

It’s also very important to understand that the law, even in the context of sentencing, can be extremely complicated, particularly, for example, when you’re dealing with young people or vulnerable people…

However concerned and disturbed anybody is — with good or bad reason, justified or not — nothing justifies the sort of abuse of individual judges, let alone death threats and more that individual judges are presently subject to.

Carr gave no further details. But her reference to young or vulnerable people suggests she may have been thinking of the two teenage boys convicted of raping two young girls at Fordingbridge, Hampshire, who were given non-custodial sentences by Judge Nicholas Rowland at Southampton Crown Court on 21 May. Rowland was widely criticised by politicians and others until a transcript of his sentencing remarks was made available a week ago.

Judicial security remained an absolute priority, Carr told Lord Cryer. It was not just about protecting individual judges, it was about protecting the rule of law. As she explained:

• It was central to diversity: underrepresented groups were more exposed to abuse and online attacks. As a result, some people were deterred from applying for high-profile judicial positions.

• It was foundational to transparency: judges whose sentencing remarks were filmed for broadcast were more likely to be recognised.

• It was also linked to complaints about judicial misconduct: the more information that was published about disciplinary matters, the more exposed a judge might be to the sort of attacks that the head of the judiciary and her colleagues were trying to protect them from.

Parliament

The lady chief justice is also keen to maintain “comity” between the judiciary and parliament. She gave written evidence in March to the Commons procedure committee, which had been asked by the Commons speaker last year to examine the sub judice resolution under which MPs agree to restrict what they say about current court cases.

Carr told peers yesterday:

We know that the sub judice rule is a critical safeguard both to judicial independence and parliamentary privilege. We, the independent judiciary, play our part by not commenting on policy matters, by developing the common law and applying it in a way that is respectful of the separation of powers.

And, as I said in my evidence to the procedure committee, it is a two-way street. Parliament in turn needs to respect the work of the judges and the courts and to respect that fundamental principle of comity.

I understand all too well that respect begins with understanding, and here some of the work that we can do together comes into play.

The lady chief justice explained that she was taking steps to help MPs and peers understand better how the judiciary works

“I think in the context of some recent legislation there was an amendment tabled in relation to judicial training,” she said — again without mentioning any names, but perhaps referring to an attempt by the Liberal Democrat MP Jess Brown-Fuller to ensure that judges were given what she saw as appropriate training on matters relating to violence against women and girls.

“That demonstrated to me that there was an absolute lack of familiarity with section 7 of the Constitutional Reform Act, under which judicial training is exclusively a matter for me,” Carr said firmly.

She has appointed parliamentary liaison judges — originally two and now four — who engage informally with parliamentarians and then report back to the senior judiciary. They have not been publicly named.

Judicial appointments

Nor have the new master of the rolls and the new president of the King’s Bench division. But they have been chosen — Carr was on the appointments panel — and she expected their names to be announced long before they take office in October.

They had been selected even though there has been a vacancy at the top of the Judicial Appointments Commission since the beginning of this year. Professor Lynne Berry CBE is the government’s preferred candidate for the post and, by coincidence, she was appearing before the Commons justice committee for pre-appointment scrutiny as Carr was giving evidence to the constitution committee.

Berry will be interested in Carr’s remarks, just as Carr will be interested in reading the transcript of Berry’s evidence. A series of questions from Dr Neil Shastri-Hurst has already attracted some attention.

The Conservative MP reminded Berry that the government had been seeking to appoint a chair of the Judicial Appointments Commission with “substantial knowledge or understanding of making senior appointments on merit”. That was something Berry was very used to doing, she told him.

This was how their subsequent exchanges were recorded:

Dr Shastri-Hurst: The job description specifically sets out merit and I think the public would want to know that it is the best candidates who are being selected for this important role. Do you agree that merit alone should be the sole consideration?

Ms Berry: I do not believe that merit alone is the only consideration that the law allows. Merit is crucial, but so is a focus on diversity and on good character. There are a number of things there but without merit you do not go further. Merit is crucial.

Dr Shastri-Hurst: Where do you see the balance between those competing factors? Most people, if they are before a judge, would want to know that the person making that decision is the most qualified to do so, irrespective of colour, religion, caste or race. How do you do that balancing exercise to ensure that you are getting the best person for the job?

Ms Berry: You start off by being really clear about what constitutes merit. I have found it really interesting that there are quite a few different views of what merit looks like. For me, it means integrity, independence, good judgement and sound and excellent intellectual capacity. It also means practical things such as being able to run a court well. These are increasing issues, particularly with the perception — and the reality — that cases are taking far too long. Those are the basics; any person getting through needs to be able to demonstrate those.

Quite possibly, they need to be able to demonstrate other things too. In the very complex cases that go to certain levels of judge, there is a whole range of issues about balancing different rights and making sure that decisions are made well.

Judges need to be good communicators. I really think that that is quite important. It is not something that you do out of the public eye; it is something that you do in the public eye. Words have significance, meaning and consequences. I would want to make sure that the judges were also good communicators.

If, in addition, issues about good character and diversity are coming into it, that is really important, but the first step is merit.

Carr, too, spoke about diversity in the context of recruiting new magistrates. She said the current recruitment campaign was “targeting individuals aged between 35 to 49 to bring down the age profile, and also targeting people from lower income and diverse backgrounds to build a magistracy that is more diverse”.

The justice committee had expressed concerns about the challenges of recruiting magistrates in a report published yesterday morning.

Update 12 June: the committee has endorsed Berry’s appointment. The committee was told there was only one other appointable candidate.

Electing jury trial

Under the Courts and Tribunals Bill, which is currently awaiting further consideration by the House of Commons, magistrates could in future try middle-ranking charges for which defendants can currently choose jury trial. Although removing the right to elect jury trial for “either-way” offences would reduce the workload of the Crown Court, it would inevitably increase the number of cases tried by magistrates.

In a report published today, the justice committee said it was not convinced that the capacity of the magistrates’ courts can be increased enough to cope:

It seems unrealistic to propose that 7,000 magistrates can be recruited in three years and that there will be 21,000 magistrates by 2029. The decline in the number of magistrates and legal advisers is part of a long-term trend which we do not believe can be reversed simply because the government has decided that allocating more cases to the magistrates’ court is the preferred solution to the crisis in the Crown Court.

For that reason, the MPs added, the government needed to increase the number of legally qualified district judges who sit in the magistrates’ courts. It should also ensure that the legal advisers who support lay magistrates were paid as much as other public sector lawyers.

Magistrates’ sentencing powers

Over the past five years, the maximum custodial sentence that a magistrates’ court can impose has gone from six months to 12 months, down to six months again and then back up to 12 months.

The government’s bill would allow ministers to set the maximum at six months, 12 months, 18 months or 24 months.

In response, the justice committee said:

Clause 6 is one of the most radical measures proposed in the bill. It would give the power to the government to double the sentencing powers of magistrates from the current maximum of 12 months to 24 months through a statutory instrument with limited parliamentary oversight. The government has presented this as a moderate measure which simply modifies an existing power. However, there are good reasons to question this…

Enabling lay magistrates to impose a custodial sentence of 24 months represents a significant shift in criminal justice policy and we are not convinced that this has been sufficiently justified. Doubling the maximum custodial sentence will lead to more serious and complex cases being tried in the magistrates’ courts and this will further increase workload pressures on a court which is already experiencing capacity issues.

Appeals from magistrates’ courts

The bill would replace a convicted person’s automatic right to appeal with a requirement to obtain permission. Also, the current full retrial in the Crown Court would be replaced with a hearing limited to the issues for which permission to appeal had been granted.

The committee found that appeals from the magistrates’ court represented a small and declining proportion of cases dealt with by the Crown Court. It recognised that the requirement for a second hearing could have an impact on victims and witnesses. But, it said:

The high proportion of successful appeals suggests that the current right to a rehearing, which allows for both factual and legal issues to be reconsidered, plays an important role in correcting wrongful outcomes.

Given proposals to increase the complexity and seriousness of the magistrates’ courts’ caseload, the government should consider delaying the introduction of any changes to the appeals process. A delay would enable the government to assess the impact of the reforms on the magistrates’ court and to assess whether they had led to an increase in the number of appeals. A delay would also allow the government to take account of the Law Commission’s forthcoming report on criminal appeals.

Finally, any changes to magistrates’ appeals should only be introduced once recording of all magistrates’ court proceedings has been introduced and is proven to be operating effectively.

Crown Court

At present, all Crown Court trials are conducted with juries. Under the bill, they would be reserved for cases that must currently be tried by a jury or where the defendant “would be likely to receive a sentence of imprisonment or detention of more than three years”. Other offences that can currently be tried either in the Crown Court or by magistrates would be tried by a judge alone, sitting in a “bench division”.

The government has not accepted Sir Brian Leveson’s recommendation that defendants in the Crown Court should be allowed to chose trial by a judge sitting without a jury — although, as the committee complains, ministers have not yet published the formal response they had promised to Leveson’s report last summer.

The committee said:

The evidence submitted to the committee indicates that the allocation process in the Crown Court could consume a significant amount of court time and judicial resource. Given that the aim of the bill is to save time in the Crown Court, it is troubling that the provisions on allocation will lead to court time being consumed in considering where the case will be tried rather than deciding cases…

The sole reliance on using the likely length of sentence to determine allocation to the Crown Court bench division will cause problems. A defendant with several previous convictions is more likely to receive a jury trial than a defendant without any. Children are less likely than adults to receive a jury trial…

The evidence received suggests that a system of judge-only trials is likely to be fairer and more efficient if defendants can elect for judge-only trials. Although this would be in tension with the government’s view that only the courts should decide on allocation, there is merit to considering whether any alternative allocation mechanisms used in other jurisdictions would be fairer and more efficient…

The government must consider whether relying on the three-year sentence threshold is the right approach to allocating either-way cases to judge-only trial in the Crown Court. In particular, the government must ensure alternative criteria are included to enable the judge responsible for allocation to decide that a case with a likely sentence of three years or less should be tried by a jury.

The determination whether to allocate an either-way case to the Crown Court Bench division will have significant implications for the defendant and everyone else involved in the case. The determination will be based on an early assessment of the circumstances of a case and may, in some situations, involve complex analysis and difficult judgments.

As a result of both of these factors, it seems anomalous that it would not be possible to challenge the determination by way of appeal. There is also uncertainty as to whether allocation decisions in the Crown Court will be capable of being judicially reviewed.

Diversity

The committee was also concerned at the lack of diversity in the Crown Court. It said:

The fact that only 1% of Crown Court judges are Black and that this has not changed since 2015 is shocking. In our view, the lack of progress on the number of Black judges in the Crown Court is evidence that something is seriously wrong with the process of appointing the judiciary.

While successive chief justices have acknowledged this issue, the persistence of such stark underrepresentation demonstrates that efforts to date have failed to deliver meaningful change. We are not convinced that the current schemes and initiatives will be sufficient.

Minority report

Although today’s report was adopted unanimously, two Liberal Democrat members and one Conservative voted to go further.

In what amounts to a minority report, Tessa Munt, Vikki Slade and Neil Shastri-Hurst wrote:

The proposal to remove the right to elect trial by jury represents a constitutional change for which the government has failed to provide an adequate evidential basis…

The right to elect jury trial is a long-standing safeguard which should not be curtailed simply for reasons of administrative convenience or to compensate for systemic failings elsewhere in the courts system. There is a serious risk that these proposals will do little more than shift pressure from the Crown Court to already overstretched magistrates’ courts, whilst reducing public confidence in the fairness of criminal proceedings…

In our view, the government has not come close to making a sufficiently compelling case for the removal of such an important right.

The three opposition MPs were outvoted by five Labour members of the committee.

Comment

The justice committee has been taking evidence on the Courts and Tribunals Bill since it was published in February. MPs have produced their report in time for the bill’s report stage and third reading debate, which might have been expected this week. But no date for these stages has been announced, yet even though the bill was reintroduced to parliament four weeks ago. All the signs are that ministers have chosen to postpone a difficult vote in the Commons until after the by-election next week.

Although the justice committee has a Labour chair and Labour majority, its report offers little comfort for the government. By contrast, the recommendations have been welcomed by solicitors’ and barristers’ leaders, who oppose parts of the bill in its present form.