Five short topics for you today.
Lucy Letby
In the Commons on Tuesday, Sir David Davis MP asked the justice secretary a “topical question” — meaning one that Alex Chalk was not expecting:
Chalk did the best he could:
Davis was apparently referring to an order made by the Court of Appeal on 22 April, when Letby renewed her application for permission to appeal against her convictions for murdering seven babies and attempting to murder six others at the Countess of Chester hospital. Dame Victoria Sharp, Lord Justice Holroyde and Mrs Justice Lambert have reserved judgment.
The judges made an order under the Contempt of Court Act postponing coverage of the appeal hearing. However, news outlets were allowed to report that Letby had put forward four grounds of appeal, each of which involved a submission the trial judge had wrongly refused applications made on her behalf during her trial. We shall also be allowed to report whether her application succeeds or fails.
The reason for these restrictions is that Letby is facing a retrial next month on one count of attempted murder. Courts may order news reports to be postponed “where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice”.
The New Yorker is aware of the retrial and, as far as I can see, it has not reported anything that was said at the appeal hearing last month.
In addition, and presumably to reduce the risk of prejudicing the forthcoming hearing, the magazine’s publishers have tried to ensure that non-subscribers in the United Kingdom cannot read the online version of the piece. Instead, they see this:
But it’s easy enough to get round that restriction:
And it’s even easier to buy a copy of the print edition1 in London:
When a retrial takes place, the jury is not normally told that a defendant has been tried before. But no juror would fail to recognise Letby’s name. The judge at her retrial will just have to direct jury members to put out of their minds anything they may have read about her — not least in The New Yorker.
The attorney general’s office told me:
We are aware of the material which has been published in The New Yorker. We continue to monitor reporting.
Trudi Warner
Also on 22 April, a High Court judge refused to grant one of the government’s law officers permission to bring contempt of court proceedings against a woman who had held up a sign at the entrance to Inner London Crown Court.
Robert Courts KC MP, who as solicitor general is the attorney general’s deputy, alleged that Trudi Warner had confronted potential jurors as they approached the court building.
However, Mr Justice Saini concluded that “the succinct direction given by the judge was sufficient to deal with any prejudice to the trial”.
As the Guardian was the first to report yesterday, the solicitor general is seeking to appeal against Saini’s ruling.
A spokesperson for the law officers told me:
The High Court’s judgment in this case has raised important questions about protecting jurors from interference — which is why the solicitor general is seeking permission to appeal.
Contempt of court is a serious matter and the power to issue proceedings is used sparingly.
Operation Early Dawn
The Ministry of Justice informed solicitors, barristers and magistrates yesterday that it was implementing, with immediate effect, a policy it called Operation Early Dawn.
Exactly what this involved was far from clear. There was no announcement on the Ministry of Justice website.
The BBC reported that some suspects would be released on bail rather than sent to a cell because their trials would be put off.
The Law Society Gazette reported that, under the new arrangements, defendants could be kept in police custody for an extra night instead of being brought to court. It said the prisons and probation service would assess each morning which defendants could be transferred from police cells and taken to court. That would apparently depend on whether there was somewhere they could be held if they were remanded in custody.
A Ministry of Justice spokesperson told the Gazette:
We continue to see pressure on our prisons following the impact of the pandemic and barristers’ strike which is why we have initiated a previously used measure to securely transfer prisoners between courts and custody and ensure there is always a custody cell available should they be remanded.
The Law Society told solicitors:
We have been made aware that, from today, the lord chancellor is triggering an emergency measure, Operation Early Dawn, to deal with the worsening problem of the prison population.
Many magistrates’ court cases will be delayed. Practitioners will not know if their clients’ cases will be delayed for sure until they get there.
This particular impact will be caused by a triage process for defendants being transferred from police custody suites to the magistrates’ courts and then likely to be transferred to prison.
We understand priority will be given to defendants in the most serious cases. We understand that defendants who are not prioritised will be released on police bail.
We are awaiting further urgent information from HM Courts and Tribunals Service and the Ministry of Justice to clarify the practical implications of this decision, including how they will deal with the issue of the wasted costs members may incur in these circumstances.
Sam Townend KC, chair of the Bar Council, said that barristers would do all they could to make sure the day-to-day administration of justice continued.
He added:
To blame the bar for this, as the Ministry of Justice’s statement seems to, is wrong. Covid and the criminal bar action happened in the past. It is how you respond to it that is the test for government.
Operation Early Dawn is just one symptom of the chronic lack of investment in the criminal justice system for so long, along with up-to-70-days-early release of prisoners, the average time to trial now at a year and the backlogs worsening.
We cannot continue like this.
And Tom Franklin, chief executive of the Magistrates’ Association, said:
We have seen the reports that the lord chancellor is implementing an emergency measure, Operation Early Dawn, to deal with prison overcrowding by delaying the cases in magistrates’ courts.
We are very concerned about these further delays being imposed on cases reaching magistrates’ courts. Every case that is delayed has real-life consequences for victims, witnesses and defendants — and leads to magistrates and court staff sitting around waiting, rather than administering justice. That is a waste of resources, at a time when there are already large backlogs.
It demonstrates the parlous state of the criminal justice system and the need for an injection of more resources at every stage of the justice process.
It is also alarming that the amount of information on this is scant. Neither the Magistrates’ Association nor magistrates have been informed about this.
We are urgently seeking further information from the Ministry of Justice and HM Courts and Tribunals Service, and will update our members in due course.
Comment
It is extraordinary — or perhaps evidence of a deepening crisis — that these changes have been implemented without those directly concerned being told exactly what is going on.
Although the Ministry of Justice says the arrangements have been used before, we need to know what legal justification it has for delaying the appearance of defendants before the courts.
Public health powers
A new legislative framework is needed to deal with future public health emergencies, according to an expert report published yesterday.
The Independent Commission on UK Public Health Emergency Powers recommends:
Restricting use of urgent government law-making without prior parliamentary scrutiny to circumstances when an “urgent health situation” has been declared;
Ensuring that parliamentarians have greater access to advice from the chief medical officer when scrutinising urgent government law-making;
Requiring public health regulations passed without prior parliamentary scrutiny to expire after two months; and other public health regulations to expire after six months;
Increasing the information parliament receives on the impact of public health regulations;
Requiring ministers to have regard to advice produced by human rights bodies.
The commission was supported by the Bingham Centre for the Rule of Law and chaired by Sir Jack Beatson FBA, a former lord justice of appeal.
He said:
Our recommendations focus on the design of legislation (including the protection of human rights), the enhancement of parliamentary procedures, improvement of legal certainty, and the appropriateness of enforcement action.
They are based on our research and on evidence from those with experience and expertise of law making, public health, policing, and human rights in all parts of the UK and in ten other countries. I very much hope that they will inform the UK and Scottish Covid-19 inquiries and government planning for future emergencies.
The design of public health emergency frameworks is important because such frameworks are the foundation for wide scale interventions of the type imposed during the Covid-19 pandemic, which had such a great impact on everyone in the UK.
Comment
The report, which runs to nearly 150 closely printed pages, was published at lunchtime yesterday with no advance copies. I have not had time to read it.
But at the launch last night, which was attended by parliamentarians including the former health secretary Matt Hancock MP, I was told that it dealt with issues which would not be considered by the government’s independent Covid-19 inquiry.
Baroness Hallett and her team are thought to be constrained by article 9 of the Bill of Rights 1688, which says
That the freedome of speech and debates or proceedings in parlyament ought not to be impeached or questioned in any court or place out of parlyament.
This provision is said to restrict the ability of the Hallett inquiry to quote parliamentary debates and criticise parliamentary legislation. No such inhibition applies to the report produced by Beatson and his team, which means their report is an important contribution to the public debate.
Leaving the convention
UK in a Changing Europe is an academic think tank that explores the UK’s evolving relationship with the European Union, and its place in the world.
It published a helpful guide yesterday explaining how the UK could leave the European Convention on Human Rights (ECHR) — which may become an issue in the forthcoming general election campaign and its aftermath.
The guide is written by Dr Joelle Grogan, senior researcher at UK in a Changing Europe, and Dr Alice Donald, professor of human rights law at Middlesex University.
If the UK withdrew from the ECHR, there would be inevitable international consequences.
The Belfast/Good Friday agreement requires the ECHR to be part of the law in Northern Ireland. There is no way for the UK to leave the ECHR without violating the agreement, causing issues for the peace settlement in Northern Ireland, as well as the UK’s relationship with Ireland, the EU and the US.
Relations with the EU would also be further strained by withdrawal…
Beyond this, the UK currently has one of the strongest records of compliance with the ECHR. Withdrawal would set a precedent for other countries with far worse records and weaken the UK’s capacity to advocate for human rights internationally, as well as its reputation for holding itself and others to account.
Experts observe that withdrawal would also run counter to the UK’s strategic priorities, such as tackling aggression from Russia and China and supporting Ukraine. The government has stated its commitment to multilateralism [which means] fostering international cooperation through organisations such as the Council of Europe to tackle shared challenges like terrorism, organised crime and climate change.
Update 20 May: An image published by the trade paper Press Gazette last week gives the impression that a summary of the story on the magazine’s cover has been redacted in the UK.
Police cells are already under severe pressure and there are short time limits for holding those arrested but not yet charged. What are the police supposed to do? Not arrest people who they need to hold pending charge - especially given how long it often takes the CPS to deal with applications for permission to charge. Or hire hotels ..........................