Are you one of those talented individuals whose brain temporal lobe is equipped with an enhanced capacity to recognise faces? Since 2015, the Metropolitan Police has employed a specialist squad of about 200 ‘super recognisers’. After after trawling through nearly 5,000 hours of Salisbury CCTV footage two of them were able to identify the attackers of Sergei and Yulia Skripal.
Using recognition skills has been a part of the armoury of detection since Robert Peel established Britain’s first police service in 1829. But what of the enhanced use of technology? How do you feel about this?
In September 2019 Ed Bridges and ‘Liberty’ lost their challenge to South Wales Police concerning the use of facial recognition technology. The Divisional Court (Haddon-Cave LJ and Swift J) held that both as to purpose and method, automated facial recognition was compliant with current law, including the provisions of the Data Protection legislation.
Whilst covert use of technology by the police is regulated by the Regulation of Investigatory Powers Act 2000, codes of practice, and ultimately supervised against the right to privacy by the courts, private use is developing just as CCTV did: minus statutory control, meaning that systems may be deployed without public oversight.
Hannah Devlin’s excellent article in the Guardian (5 October 2019) addresses the use of facial recognition outside the home. It seems that for 3,000 GDP ‘Facewatch’ can provide off-the-shelf software and camera systems like the one used by its chairman, Simon Gordon, owner of Gordon’s Wine Bar in central London. With clever graphic processing units (GPUs) to conduct biometric identity comparisons, the software screens facial measurements at lightning speed to identify those within its database.
Just how much of a concern is this to the ordinary, law abiding citizen who has nothing to hide?
As a matter of principle, I have no issue with the use of facial recognition technology. Whether its purpose is to identify wanted criminals, missing persons, regulate entry to buildings, or simply track customers as they shop, I can see a host of benefits which outweigh its disadvantages. Already, many of us choose to display our identity through social media, including hundreds of photographs that track and broadcast our location, where we live, what we eat, where and for what we shop, and where we spend out leisure time.
Recognition intrusion is nothing new, for up to the middle of the twentieth century, our movements were largely transparent by social necessity. School friends knew the background of their classmates, neighbours knew the jobs, movements and families of those in their town, and shopkeepers greeted their regular customers by name.
Those simple, uncomplicated days may be a thing of the past, but recognition is still something that many seem to crave, and the rest of us appear to accept. Setting artificial limits on the use of technology based on a cult of privacy is perhaps the wrong way to progress?
A guide to the Supreme Court judgment, and clarification in relation to a few popular misconceptions.
The Supreme Court is unusual as a court.
Most courts have a dual function: to find facts; and to apply those facts to the law as it understands it to be.
The Supreme Court, however, is not on the whole constituted to be a ‘fact finder’, although sometimes it is necessary for it to make factual findings on the basis of evidence, as in this case. Its principal purpose is to clarify existing laws and determine legal issues – to rule upon the extent of powers, the actions that are expressly allowed, those that are forbidden, and actions that are required to be undertaken in accordance with statute or established case law.
Put simply, when lower judges don’t know what to do, or might have got something wrong in interpreting the law, the Justices of the Supreme Court provide final clarification and binding determination, and thus guidance for UK judges. The process works on the premise that individuals can do anything that is not prohibited by law; but public bodies (including the government) may not do anything unless expressly permitted by law (my rather clumsy simplification).
The case brought by Gina Miller and others concerned the prorogation of Parliament by the executive (the government). The Supreme Court decided that there were four questions to be answered:
(1) Is the question of whether the Prime Minister’s advice to the Queen was lawful, justiciable in a court of law?
(2) If it is, by what standard is its lawfulness to be judged?
(3) By that standard, was it lawful?
(4) If it was not, what remedy should the court grant?
Let us take the first question. The word ‘justiciable’ means ‘properly a subject for determination by a court’. There is a strong argument that courts should not interfere in the political process. To do otherwise would take courts from ‘law appliers’ to ‘law makers’. Courts are legal interpreters, not legislators; that is the job of Parliament and those bodies to which Parliament has delegated law-making powers.
Prorogation of Parliament is a ‘prerogative power’: that is to say, a recognised common law power exercised by the Crown (in this case the government). Its exercise is dressed up as a decision requiring the Queen’s consent, but in reality the monarch is expected to follow the advice of her Prime Minister, as in this instance.
A problem with prorogation is that it has the effect of removing government from Parliamentary supervision and accountability. It effectively ‘stops Parliament in its tracks’. This means that Parliament itself cannot interfere, stop, affect or determine the issue of prorogation. The very act of prorogation removes Parliament’s oversight. The Supreme Court took the view that, as Parliament itself could not supervise prorogation, it fell to be a matter to be regulated by the judges.
Before reaching a conclusion on the question of justiciability, the Supreme Court had to determine whether the present case brought by Gina Miller required it to determine where a legal limit lies in relation to the power to prorogue Parliament, and whether the Prime Minister’s advice went beyond that limit; or whether it concerned the lawfulness of a particular exercise of the power within legal limits.
The Supreme Court considered this issue in relation to the paramountcy of protecting Parliamentary sovereignty. At paragraphs 42 and 43 of the written judgment, the court committed itself to the importance of this supremacy principle. This arguably forms the first important evaluative point of their decision.
The Supreme Court clearly held that they had every right to interfere in the exercise of this power, and thus answered their first question. In effect this was not a difficult decision as their power to intervene was conceded by the Prime Minister’s own barrister.
In relation to questions 2 and 3, the court went on to find that this was not a normal prorogation of Parliament in the run-up to a Queen’s Speech. It held that this prorogation prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October. Such an interruption in the process of responsible government might not have mattered in some circumstances; but the court found that the circumstances here were quite exceptional due to the imminence of Brexit (para 57).
Whilst the court stated that they were not concerned with the Prime Minister’s motive in doing what he did, they were concerned with whether there was a reason for him to do it. Why did he need five weeks? So at this point the court considered the available documentation, including Nikki da Costa’s memoranda to the Prime Minister dated 15 & 23 August 2019, the Prime Minister’s handwritten comments on 16 August, and the Cabinet Minutes dated 28 August 2019..
“Most tellingly of all, the memorandum does not address the competing merits of going into recess and prorogation. It wrongly gives the impression that they are much the same. The Prime Minister’s reaction was to describe the September sitting as a “rigmarole”. Nowhere is there a hint that the Prime Minister, in giving advice to Her Majesty, is more than simply the leader of the Government seeking to promote its own policies; he has a constitutional responsibility, as we have explained in para 30 above” (para 60).
“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful” (para 61).
That in effect decided the question of ‘lawfulness’ of prorogation.
Finally, the Supreme Court turned to the question of what to do about it.
The inevitable first consequence was a ‘declaration’ that the proroguing of Parliament on this occasion was unlawful.
Here, it is vitally important to understand what the court means by the term ‘unlawful’, especially as commentary on this topic in the media is already misleading – confusing ‘unlawfulness’ with ‘illegality’.
‘Illegal’ means that an act is forbidden (proscribed) by a statute (for example, a crime). ‘Unlawful’ means that an act is not expressly authorised by law. The difference is more than semantic. Many acts performed or undertaken by public bodies are adjudged to be unlawful according to a subsequent court ruling. The difference between them is that acts which are illegal are acts that are expressly forbidden by clear law. This action by the Prime Minister was not one of those.
The next question was as to the legal consequence of an ‘unlawful decision’. Gina Miller called for it to be declared null and void, and this brought into play the Bill of Rights 1688.
Here the court involved itself in a little legal football. Was prorogation ‘a proceeding in Parliament’, in which case the court’s intervention with it would itself be unlawful? The court concluded that, as prorogation took place in the House of Lords in the presence of members of both Houses, it could not sensibly be called a proceeding in Parliament, as it was not a decision of either House. Thus, this prorogation was of no effect, and the clock should be turned back as if it had never been sought.
That concluded the Supreme Court’s deliberation and judgment. Of course it does not finalise the debate, but initiates another.
Here, perhaps, are some points to be considered over the next weeks and months.
Has the intervention of the courts assisted constitutional clarity, or complicated it?
In its focus on the paramountcy of Parliamentary sovereignty, has the Supreme Court left itself a hostage to fortune in relation to future issues involving the UK Parliament’s forfeiture of sovereignty?
How will the public respond to the fact that the courts have supported an unpopular parliament that many feel has failed them?
Will Gina Miller and Joanna Cherry’s applications to the courts, and the court’s ready intervention in this political/constitutional issue politicise future appointments to the Supreme Court, as it has with Brett Kavanaugh in the USA?
Freddie, what year was it when we did that case together? Definitely in the 1990’s from what I remember. Did you keep any of the press cuttings? Might you have taken them with you to Spain?
In a career acting for the defence in multiple homicides, international frauds and curious crimes, few cases were more memorable than working with the now late Freddie Starr. The fact that he was neither the defendant, nor had anything to do with the case, made it even more remarkable.
Gas lights, still present in the Temple, have just been lit outside. We are sitting in the ground floor corner room at 5 Essex Court, Middle Temple, London. The walls are a coloured deep dark crimson. A bevelled mirror above the fireplace reverses the Weekly Law Reports opposite and in gathering gloom, light reflects from lamps on the mantelpiece.
Across from my partners desk sits the accused. There is nothing memorable about his demeanour or appearance. It is his crimes that catch attention. ‘Kidnapping and torture’.
When the solicitor had called by to tell me about the case I could hardly believe the challenge. Statements revealed witness after witness that had seen or heard something, but it was not until reading the victim’s account that the daunting nature of the task dawned. This was truly a case that hinged upon the voracity of his evidence.
A few months later we find ourselves in the Crown Court at Wakefield, the delightful and talented Colin Harvey of counsel is prosecuting, His Honour Judge Lightfoot is presiding. Michael Lightfoot was the type of judge that you simply did not want when defending the guilty or the innocent. His background, and probably DNA were steeped in prosecution. He was a medieval style judge whose hand would stray to his black cap, fingering its fringe as he passed sentence.
The prosecution completed its case with a self-satisfied flourish. Their witnesses had come up to proof, saying just the right things in the right order to seal a water-tight case against my client. Despite my challenges and imputations, the complainant had remained resolute and unmoving. Two hours later, my client too had finished his evidence; but by this stage the jury appeared to have lost interest in his assertions of innocence.
What Judge Lightfoot did not know (for in those days the judges were not forewarned) was the identity of the witness who my client and I were intent upon calling next. In the years before the Criminal Justice Act 2003 the rules relating to the admissibility of the complainant’s character were governed by a little known case dating back to the 1860’s. With a bow to the bench I informed the court of my wish to call independent evidence to demonstrate that the complainant was of dubious character, upon whose evidence it would be foolish to rely.
Judge Lightfoot’s face turned a darker shade of puce when I produced copies of the Court of Appeal judgment that bound his discretion. “Right, Mr Twist, it seems I cannot stop you, so let’s get on with it, call your witness”, he retorted.
Moments later, my instructing solicitor returned from the private witness room to announce that our witness was no longer there. A note on the table read, “Have gone to the airport to board my plane for Spain”.
With urgency a motorcyclist was dispatched to the airfield, cutting to the runway just before he was to depart, and the witness was persuaded to return.
“Your Honour, members of the jury, I call Freddie Starr to give evidence”.
Freddie Starr did not know my client, but had known the complainant of old. It seems they had had their issues; but Freddie had retained his trump card – evidence of the complainant’s malfeasance. With a theatrical wave and a smile to the jury, he delivered it like a knife to the complainant’s heart. The prosecution’s case crumbled. After speeches, the jury retired for five minutes before returning to declare their ‘Not Guilty’ verdict.
Judge Lightfoot was livid. “Mr Twist, your witness kept us waiting, so I propose to sentence him instead – for contempt of court. The jury must stay to see what I propose to do with him”. “Take a few minutes to consult if you wish”.
Freddie Starr, who sipped from a clear bottle of liquid, appeared distraught. “Just say you are sorry, Freddie, and the judge may back down”, I advised.
We returned to the court. The jury looked on with anticipation. “Bring in the witness”, ordered Judge Lightfoot.
Instead of making his way to the witness box, Freddie Starr decided on a diversion. Trotting to a position directly below the Judge’s bench, there he fell to one knee.
“Please forgive me”, he pleaded, placing his hands together in supplication – or was it prayer?
At this the jury burst into spontaneous applause. A moment of true theatre. An occasion of comic supremacy. Judge Lightfoot rose slowly and left without a word.
Today, Bobby Davro said, “Out of all the comedians from the past era, I would have to say he was the funniest man I’ve ever seen in my life”.
I know one jury that would agree with that verdict.
Digital record keeping has removed the possibility of turning up at court only to find that you have previously cross-examined your client. These days, family law practitioners have the words ‘watch out for conflicts of interest’ printed into their DNA.
However, in this blog, I wish to examine another, rarely addressed conflict; one apparently under-researched, often overlooked and when perceived, dismissed as an unavoidable aspect of our family court system.
The British Association of Social Workers ‘Code of Ethics’ first mentions the words ‘conflict of interest’ in the penultimate line of code 2.3(4). Yet to its credit, at code 2.2(4) we find the words,
“Challenging unjust policies and practices. Social workers have a duty to bring to the attention of their employers, policy makers, politicians and the general public situations where resources are inadequate or where distribution of resources, policies and practice are oppressive, unfair, harmful or illegal“.
In times of financial constraints, local authority social service directors find themselves with ever-diminishing budgets to service ever-increasing workloads. But how do they balance the potential conflicts of interest?
In 2017, the number of care applications reached record levels, and children looked after in the care system was at its highest since 1989. Currently there are about 73,000 children in the care system, up from 60,000 in 2007. Local authorities are simply struggling to keep pace financially.
According to the Care Crisis review, “Many professionals described the frustration they feel at working in a sector that is overstretched and overwhelmed and in which, too often, children and families do not get the direct help they need early enough to prevent difficulties escalating.”….“There was a palpable sense of unease about how lack of resources, poverty and deprivation are making it harder for families and the system to cope.”
Sir Andrew McFarlane, President of the Family Division added in July 2018, “It may properly be said that we have reached a stage where the threshold for obtaining a public law court order is noticeably low, whereas, no doubt as a result of the current financial climate, the threshold for a family being able to access specialist support services in the community is conversely, very high.”
My recent experience suggests that social services managers are determining choices on the basis of cost – rather than need. This may be inevitable with a finite budget, but does it not call into question whether those with financial interests should be calling the shots?
In a previous blog, I have discussed the idea of removing applicant-status from local authorities to a conceptual ‘Office of the Children’s Guardian’ (OCG). Under that proposal, where social service departments considered a need for public law intervention, they would refer the matter to the independent OCG, which would review the case and where appropriate, take and fund action.
It would follow, instead of disparate local authorities setting different standards of intervention, that public law decisions would be taken (and funded) on a national basis according to national guidelines. Local officers would still bear responsibility for delivery and implementation, but the conflict of cash v action would be removed from their local shoulders.
At times, described by Sir Andrew McFarlane as “untenable”, radical action is needed. Perhaps here is a kernel of a radical answer?
In a previous blog ‘The Almost Digital Barrister’, the assiduous reader will recall that I considered the concept of online digital bundles and templates as a mechanism to reform case management.
Since then, the suggestion has been passed from circuit to the High Court judges, and a number of fellow professionals have asked me about the concept; so now seems the right moment to discuss it in more detail.
My practice these days centres on family law – including public, private and financial matters. This blog will therefore focus on this area, although with flexibility, the ideas should be transferable.
Public law cases
For the uninitiated, ‘public law family cases’ are where local authorities having responsibility to ensure the safety and protection of children, become involved with families in their catchment area. They usually start with a ‘referral’ relating to safety or welfare issues, with the expectation that social services will become involved to support, assist and if necessary intervene in the family.
When intervention is required (often where the local authority is seeking to exercise parental responsibility for a child) an application is issued in the family court and a judge becomes involved. Most cases then enter a 26 week completion window which can be extended if the judge decides this is necessary.
Once an application is issued, the court will convene several essential ‘hearings’ within the 26 week period, designed to case manage the issues through to a final adjudication should it be required.
The process involves a little medieval language. The local authority becomes ‘the applicant’ and the parents and children are ‘respondents’. Where grandparents or other family members are involved, they frequently also become ‘parties’. As often as not, a children’s guardian is appointed to separately represent the interests of the child or children. The ship has been launched.
After this, a host of professionals enter the process with their oars. For the applicant local authority there are the social workers, their managers, contact workers, family support workers, health professionals, school or nursery teachers and sometimes experts such as doctors, consultants, psychologists or substance abuse analysts. Whenever an expert is sought, the court must give its prior approval through a formal application process involving a hearing.
With these professionals come a coterie of solicitors and barristers for most if not all of the parties. In the more complex cases the advocates row in court bristles with lawyers.
The judge that is allocated to manage and resolve the case uses a process that was invented in medieval royal courts. Those that are involved in the case are required to attend before the judge. Legal discussion takes place beforehand – either by advocates conference or in the hour before a hearing. As much information as is then available (and remembered) is shared. The judge gives directions. The parties and their lawyers leave, with the expectation that they will do what they were told, and things will go well.
But, with dysfunctional families, things do not habitually go well. Some engage and succeed, others disengage and fail. Crises arise. Expectations change. Relationships break down. Communication falters and stops.
In the meantime, whilst attention is elsewhere, things get missed, and deadlines not met. On occasions, the whole expectation of weeks previous is lost. When the next ‘hearing’ comes round, the judge is in for a surprise…perhaps a number of the intended objectives have not been realised, and the judge has to re-timetable the case.
Call me simplistic, but as a simple person looking in, it seems to me that the problem is not cured by ‘tweaking’ case management, but needs root-and-branch reform. What is the purpose of bringing together in a court room a bunch of high paid professionals to discuss a case, often in a way that is incomprehensible to the family members involved? And why should these cases remain invisible to judicial scrutiny between the hearings?
The idea of an online digital case management template would go a long way to cure the problems that arise from traditional hearings. It could guide, remind and flag essential matters as they arise, rather than leaving them to a crisis point.
To start with, by using an online process, all of the professionals that need to know about a case would have access to and be guided by the same material in the template. It would be updated with each new event (under the present system often a secret before the hearing). The template can contain automatic digital triggers that require the parties to address and share issues, make decisions, disclose information and problem-solve. At the same time, the judge will be in a position to review the progress of each case at any stage with totally up-to-date information, and to give further directions on the template as to what to do. If a party has a problem with a direction, they could notify this within the template, and the judge could review their concerns. Most importantly, where directions given by the judge have not been actioned, the failure can be flagged.
Rather than pouring vast funds into traditional, and sometimes pointless hearings, why not use public funds more wisely to support the families in need? Yes, any new system will require funding, judges and lawyers will continue to be paid, but substantial savings could result.
On a related topic, the other day I read about a Ministry of Justice pilot of identity cards for lawyers. The idea is that they produce their card from their wallet or handbag and it is scanned by a security officer, allowing them entry to the court building. Contrast this with the average provincial health club where members simply enter automatically with their fingermark.
The Ministry of Justice should recognise that we already have the technology to support reform. Digital templates simply require existing software written for other purposes. It is out there: we just need the will and imagination to use it!
In September 2011, I published an outline for barristers concerning the development of paper-free practices.
Eight years on it seems we have made significant progress. Most barristers now use laptops or tablets in court. We send and receive material as email attachments. We are more comfortable with PDFs. In public family law cases local authorities prepare digital bundles, which on occasions thankfully are even digitally indexed.
But are we are still simply giving lip service to digital document management?
Let me illustrate my concern. In a recent public law family case I received a PDF bundle by email. Due to size constraints it had been scanned into volumes, none of which was indexed – nor coincided with the bundle sections, resulting in reports straddling volumes.
Digging deeper into the volumes, I realised that each ‘document’ had been prepared using a stand-alone ‘paper mentality’. Authors had never envisaged that their contribution might form part of an integrated bundle, so despite case number identification, the ‘documents’ were formatted with full headings, laboriously listing the parties and repeating unnecessary information.
What lay behind this became clear when I opened my email box. There, to my horror, bunched in no particular order, was a mass of missives with additional documents attached. Each purported to tell its own individual story; none integrated with each other – or with the bundle.
That got me thinking. Why do we send documents attached to messages? What is the point of ‘circulating’ emails, at times to previous advocates, and occasionally to be missed in the sheer weight of emails?
Surely the purpose of a ‘digital bundle’ is to bring all of the case information together in one place – to which the advocates and the judges have access. It should be capable of being digitally updated. It should be continuously definitive and authoritative, managed in accordance with the judge’s orders. It should tell the whole story that is needed to resolve the case.
Were such a ‘digital bundle’ to be teamed with a shared digital case management template (providing the advocates and judge with a running record of key issues and actions required) the working lives of advocates would become so much easier, and everyone’s decision making more reliable.
What I would like to know is whether I am alone with my suffering in this digital wilderness? Is there anyone out there that shares my concerns? If so, I would love to hear from you.