A Lawyer Talks

Harry Dunn’s parents are no longer seeking to appeal against a High Court ruling that the US intelligence analyst who caused the teenage motorcyclist’s death by careless driving nearly five years ago was entitled to diplomatic immunity, their lawyers have told me.The finding that Anne Sacoolas enjoyed immunity from UK criminal jurisdiction at the time of Harry’s death was not reached “with any enthusiasm for the result”, Lord Justice Flaux and Mr Justice Saini had said in 2020. But that conclusion, they added, was “compelled by the operation of the Vienna Convention on Diplomatic Relations”.Until now, it was thought that Charlotte Charles and Tim Dunn might still have been hoping to overturn that decision in the Court of Appeal. But lawyers from the newly merged global law firm A&O Shearman confirmed last week that the appeal “wasn’t pursued in the end because of the way that the criminal proceedings panned out”.In addition, the law had been changed so that anyone in Sacoolas’s position would not have been entitled to immunity in future.This month, a coroner found that the motorcyclist’s death was caused by a collision with a car driven by Sacoolas. She had emerged from RAF Croughton, a US communications centre in Northamptonshire, and then driven instinctively on the wrong side of the road.In response to the inquest verdict, the Foreign Office made a statement about road safety.Andrew Denny, head of UK public law at A&O Shearman, and Frances Beddow, an associate at the firm’s London disputes team, were speaking for the first time about the thousands of hours of unpaid work done by lawyers and support staff at Allen & Overy, which merged with Shearman & Sterling last month. The two lawyers were able to speak to me because the inquest into Dunn’s death has now concluded. You can listen to my interview with them by clicking on the ► symbol above. It’s the second “on-air pilot” for my new podcast, called A Lawyer Talks. The podcast will be launched in the autumn and in the meantime I am trying out various formats on an occasional basis. Comments are welcome.The legal proceedings, with their unique complications, were particularly difficult to report over the years because none of the lawyers involved was willing to explain what was going on. Even so, I secured the only interview on the case ever given by Sacoolas’s US lawyer. Amy Jeffress told me in 2021 that her client would never return to the United Kingdom. Although some of those working on the case believed otherwise, that proved to be true.Some of the background was outlined by Mrs Justice Cheema-Grubb in December 2022 when she gave Sacoolas a suspended sentence of eight months’ imprisonment.* Once a podcast episode appears on my Substack blog A Lawyer Writes, it is automatically distributed to other podcast platforms including Spotify, Apple Podcasts and YouTube. My first podcast was published last Thursday and there is also an archive of other full-length audio recordings that I’ve made over the past four years. All podcasts can be downloaded for future listening. This episode, like the previous one released last Thursday, was produced by Neil Koenig.A Lawyer Writes is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. This is a public episode. If you’d like to discuss this with other subscribers or get access to bonus episodes, visit rozenberg.substack.com/subscribe

In her new book Rough Justice, the former Old Bailey judge Wendy Joseph KC explores areas where she believes the courts have fallen short over the years — including rape, domestic violence and child cruelty.She does this by taking the reader through four dramatic cases, viewed from her seat on the judge’s bench. Although the people she writes about are not real, everything they say and do is based on what she has heard and seen in the courtroom. It’s a literary technique she used to great effect two years ago in her first book, Unlawful Killings. Her new book takes this further by placing fictional cases in a real historic background. Law students will benefit from the detailed notes she writes on the issues raised.Rough Justice — to be published by Penguin Random House on 18 July — is “a compelling read”, according to the former Supreme Court president Lady Hale. The best-selling crime writer Peter James says it’s “a beautifully written, immensely engaging, powerful and disturbing insight into a judge’s work”. I’m sure it will attract a great deal of interest when it reaches the bookshops next month.I met Wendy Joseph this week at Pewterers’ Hall in the City of London, where she is currently the livery company’s elected master. As well as discussing her new book, we listened to some recent exchanges from the Post Office inquiry and she offered some shrewd advice on advocacy skills. I also asked her about pewter.You can hear my first podcast by clicking on the ► symbol above. Alternatively, you can download it to listen later by clicking the three dots in the graphic. And you should also be able to find A Lawyer Talks on Spotify, Apple Podcasts, YouTube and other podcast platforms. There is also an archive of other audio recordings I’ve made over the past four years.This podcast is what we call an on-air pilot — a test run to see what works and how we can improve it. There’ll be another one, in a slightly different format, next week.If all goes according to plan, I’ll be launching a weekly series of podcasts in the autumn. Everyone on my email list — which is free to join — will be notified each time a new edition is available. You can also subscribe on whichever podcast platform you use.Do let me know what you think of A Lawyer Talks by leaving a public comment in the box below.* This edition of A Lawyer Talks was produced by Neil Koenig. It also includes the voices of Jason Beer KC; Paula Vennells; Lord Grabiner KC; Sam Stein KC; Anthony de Garr Robinson KC; and Sir Wyn Williams. The Old Bailey archive mentioned by Wendy Joseph can be found here.A Lawyer Writes is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. This is a public episode. If you’d like to discuss this with other subscribers or get access to bonus episodes, visit rozenberg.substack.com/subscribe

The challenge for the courts is making the most of new technologies and practices without losing sight of what worked in the past, a justice of the UK Supreme Court said yesterday.In a lecture called Breathing Life into the Law: Achieving Access to Justice in the Modern State, Lady Rose of Colmworth said the best way of achieving this was a blend of creativity and conservatism.“Like Moses and Jethro,” she said, “we must innovate without impairing the quality of justice being dispensed.”Rose was delivering the Lionel Cohen lecture, which has been given annually at the Hebrew University of Jerusalem by a series of leading legal figures over the past 70 years. It was set up in honour of Lord Cohen of Walmer, the first Jewish law lord, who sat in the UK’s highest court from 1951 to 1960. The lecture, sponsored by his family, is organised by the British Friends of the Hebrew University. It was well attended yesterday by members of the law faculty at the university’s Mount Scopus campus.An edited text of Rose’s remarks will be published in due course. In the meantime, you can listen to the lecture as delivered by clicking the button above. You can also download the audio as a podcast.* Note to readers: this is not the podcast I announced after the BBC decided to stop broadcasting Law in Action on Radio 4. Plans for that project are well advanced and I hope to announce more details at the end of June. The podcast itself will be launched in the autumn.A Lawyer Writes is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. This is a public episode. If you’d like to discuss this with other subscribers or get access to bonus episodes, visit rozenberg.substack.com/subscribe

Any move towards withdrawing from the European Convention on Human Rights (ECHR) would risk damaging the UK’s trading position, a former president of the human rights court argued this week.Robert Spano, now an international business lawyer, was speaking to me on Tuesday evening at a public event sponsored by the law firm Gibson Dunn, where he is a partner.Hours later, the Telegraph reported a claim by the former defence secretary Ben Wallace that the ECHR had become a threat to national security. His argument seems unconvincing, I say at the start of my column for this week’s Law Society Gazette. But most of the piece is devoted to reporting and analysing Spano’s comments.The event on Tuesday was entertainingly introduced by Lord Falconer of Thornton, the former Labour lord chancellor who is also a partner at Gibson Dunn. He asked the first question.I sent a recording of the interview to my paying subscribers on Wednesday morning, together with a summary of Spano’s comments. The recording is now available to all as a podcast, which you can download from this page and listen to in the normal way.A Lawyer Writes is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. This is a public episode. If you’d like to discuss this with other subscribers or get access to bonus episodes, visit rozenberg.substack.com/subscribe

Lord Pannick KC is undoubtedly the UK’s leading lawyer in his chosen field, public law. Perhaps best known for winning the Brexit and prorogation challenges that Gina Miller brought against the government in the Supreme Court, he is currently defending the government’s Rwanda asylum policy in the Court of Appeal while representing Boris Johnson in the Commons privileges committee.He and I discussed these cases and much more at a fundraising event last Thursday for Support Through Court, a charity that helps people who face court alone to represent themselves to the best of their abilities. The event was introduced by Lord Dyson, a former master of the rolls, who also spoke at the end.I published a video recording of the discussion on Friday but I thought it would be useful to make the recording available as a podcast that readers could download and enjoy at their leisure. Click the ⏵ symbol to start.A Lawyer Writes is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. This is a public episode. If you’d like to discuss this with other subscribers or get access to bonus episodes, visit rozenberg.substack.com/subscribe

The justice secretary Brandon Lewis said this afternoon he would defend judicial independence “to the hilt”. But, discussing reform of human rights, he stressed that parliament was sovereign. Lewis was speaking at at a meeting arranged by the think tank Policy Exchange at the Conservative party conference in Birmingham.You can listen to the lord chancellor’s remarks by clicking the button at the top of this page. I have edited a couple of the questions from the floor. The meeting was chaired by Lord Godson in a marquee that was far from soundproof.TranscriptHere is a transcript, slightly edited for clarity, of what the justice secretary said. If anything seems unclear, please check the audio. It’s a great pleasure to be here with Policy Exchange. As Dean [Godson] rightly outlined, I’ve had the honour of talking to people in Policy Exchange events over the years and everything from local government through my time at the Home Office, and as chairman of the party actually and, obviously, in Northern Ireland. And now as lord chancellor, it’s good to have an opportunity to talk to you a bit about what we’re looking at, and what the plans are as we move forward.And yes, we do still wear robes as lord chancellor, as I found out on Thursday. Having started off thinking that maybe things have moved on, I found out at my swearing-in that you still wear robes and my 19-year-old daughter will eventually forgive me for putting on a wig and a pair of tights on Thursday, and then putting it on Instagram — which I will be going back to do again tomorrow because we have the opening of the legal year. So I'll be heading back to London for that before coming back. Because I actually do think one of the things that we will focus on — and I'll talk a bit more about this later in the conference week — we have in our country something to be very proud of which is a world-leading legal profession. Legal services in this country actually are fundamental to everything we do across a wide range of areas. And I think sometimes what some of us may think are occasionally antiquated and a bit odd — these ceremonies and services that we do — actually are really quite important, I think not only to remind the rest of all but ourselves about the history of our law and how it has evolved, and how it continues to evolve to reflect what we need in society. And that will continue as we go forward. And that’s where we are, I think, when we start to look at human rights reform. It was our 2019 manifesto that specifically laid out that we will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We need to do that. And we need to be sure that we do that in a way that reflects our wish to reduce the ECHR’s influence in our system, whilst making sure we retain our other manifesto commitment that is hugely important, which is to remain a champion of collective security, the rule of law — which obviously I have a job to protect — as well as human rights, free trade, anti-corruption efforts, and a rules-based international system. And we took more action on some of this just this week, particularly with regards to anti-corruption efforts with Putin’s regime and those who purport to support it.There is a range of options for us as we go forward to explore in this area of human rights if we want to govern according to our manifesto pledge and remain absolutely true to what we promised to the people who voted for us in 2019. We do need to make sure that we are addressing, and dealing with, section 2 of the Human Rights Act — the obligation to take into account Strasbourg court jurisprudence — we need to give consideration to a tighter approach that limits creativity whilst encouraging our domestic courts to have the ability to diverge from Strasbourg case law more freely, that UK courts have primacy in and for UK law.Now more widely, when we are interpreting human rights framework in the courts, we should always seek to prioritise protecting the public from convicted offenders during the term of their custodial sentence. That, to me — the protection of the public, and looking after victims — has to be key and at the heart of everything that we do in the MoJ. But that also plays into a wider approach, and one that I intend to take as the justice secretary, which is focusing on, first and foremost, the safety and comfort of convicted offenders never ever being put over that of the safety of the public and of protecting victims.Now, there are many changes to the human rights framework that will need to be considered both by government and wider parliament. And having been a government member of parliament during a period where the relationship between parliament and the courts has been strained from time to time, I know how important it is to make sure that if we want to take forward reform in this area, we get it right, so we deliver the outcome we actually want to achieve. It is important that we ensure that the courts recognise the supremacy in a democratic system of the decisions made by parliament. That does not conflict with the principle of the independence the judiciary, which as lord chancellor I will defend to the absolute hilt. But we do need to be clear that parliament is sovereign. And if parliament has expressed a view through legislation, then the courts should always respect that view when implementing the law that has been passed. Now this is a complex area — to get that balance right — and it’s one that will require a lot of work in order to make sure that our proposals are [?] and it is a principle that we can all support.The need to reduce the courts backlog is also something that has challenged a few justice secretaries before me as well. But due to the recent strike action, as well as coming out of the Covid pandemic, we’ve seen that backlog go back up and become more challenging. I want to make sure that, during my period of time as justice secretary, all possible avenues are being explored and considered, I want to be working with the judiciary — who are equally keen to see this backlog dealt with — to look at what more we can do to get that backlog back down, and ensure that we’re looking at every opportunity to do that. I intend to put my department to work in exploring what can be done to also ensure that we curb the use of SLAPPs. These are strategic lawsuits against public participation. They are too often used by wealthy individuals to intimidate and silence the critics. And it’s not right that money can buy legal impunity in our system. We need to ensure that we have a system here, a system of human rights that doesn’t create or give cover for cancel culture. We need to do everything we can to protect freedom of speech, even when it can be really, really annoying.We can’t allow people to claim their human rights are being infringed because they disagree with us. Democracy is about debate. Democracy happens because of debate. Debate means having that opportunity to say what you believe, to make a case for it to argue for it. We all have a duty to be aware that what we say matters. So be aware that when we speak, we are talking to people and that will have an impact. We need to be free to have that debate and that conversation. We’re not talking about, in this context, protecting terrorists from inciting hatred —which must always be something we have the legal ability to deal with. But we do need to make sure that people in everyday life and in public life can have their debates freely, and have those debates openly and properly. And if that means occasionally the odd one of us as a politician gets a bit offended and needs to fight our own corner, that's what democracy is about. And that’s worth defending. As we look at the human rights and freedom to do that, as we move forward. QuestionsMy name is Grace DaCosta. I'm from Quakers in Britain. And I was wondering what was happening with the Bill of Rights Bill, whether that will be brought back or whether there'll be other legislation to replace it.We are looking at a range of things from what would have been in the Bill of Rights Bill, which we’re not bringing forward at the moment. What we are looking at is, what is the right piece of legislation to bring forward some of the measures that we wanted to deal with, for example, I’ve just been talking, at the end of my few words there, freedom of speech, strategic lawsuits against public participation, things like that, and how we do that. What’s the best, speediest way of dealing with that? I know a lot of people and we as a government are determined to make sure we are dealing with the issues that can help us deal with the issues around illegal immigration. I’m working closely with the Home Secretary to ensure that we can put together legislation that deals with that. So those key tenets we wanted to deal with we will deal with, but we’ll probably do it in different pieces of legislation.Chris McCain from the Press Association. I just wanted to ask about — you mentioned the strike action. Obviously one of the major complaints in the Criminal Bar Association is about legal aid and money. In the context where we have a Treasury looking to cut funding, will you be pushing to protect and indeed increase funding for legal aid? Obviously one of the one of the key — or probably the number one acute issues on my desk on coming into office has been dealing with the bar strike. They will be going to ballot next week. I am hopeful that they will look at the — I’m confident they will look at the proposals carefully. I’m hopeful that they will look at them positively and vote and that we will see an end to the strike. It’s a comprehensive package that deals with the issues that need to be dealt with. So I’m hopeful we will deal with that which will help move things forward and actually puts the whole structure partic

This isn’t a political blog so I’m not going to make any tired references to the cover-up being worse than the crime or history repeating itself as farce. I realise that the current threat from the Omicron variant is no laughing matter. But that, of course, is why it is so important for the prime minister and his government to maintain the confidence of the British people.The leak of a rehearsal on 22 December for the No 10 press conferences that were subsequently abandoned has persuaded most people that there was indeed some sort of party in Downing Street on 18 December, at a time when London was in a tier 3 lockdown. That meant gatherings of two or more people in an indoor space were prohibited, subject to exceptions. Did any of those exceptions apply to the party?That was what I was asked in a live interview on Radio 4’s PM programme two days ago, on 6 December. You can hear the item by clicking on the audio link at the top of this page.The story was presented by Evan Davis in a deliberately lighthearted way. That was the programme’s editorial choice but one I thought was entirely appropriate.How could Downing Street defend itself, Evan wanted to know. The government had a number of options, I replied, and it couldn’t be blamed for not showing its hand at this stage.The first was that there are exceptions in the regulations for what are called permitted organised gatherings. These cover meetings on the premises of a public body. The working areas of Downing Street must surely come within that definition.My next suggestion was that the event might have been one of the gatherings necessary for certain purposes that are exempted under the regulations. These include a gathering that is reasonably necessary for work purposes.Evan appeared unconvinced and asked me for my clincher. This had been suggested earlier by Adam Wagner, the barrister who has made it his job to understand the regulations: The Public Health (Control of Diseases) Act 1984 is the act of parliament under which all these regulations were made. Section 73 of the act deals with Crown property. Subsection (4)(d) allows a government department to agree with the local authority that a specified and relevant provision in the act should apply to that property.I take that to mean that the government department responsible for 10 Downing Street — the Cabinet Office, I suppose — could agree with Westminster City Council that the lockdown restrictions would apply on its premises. Assuming no such agreement had been made — and I would be astounded if it had — then government premises are exempt from the regulations.One rule for them and another for us? Not really, I told Evan: you can’t expect ministers and officials to run the country from home. I was less willing to defend the suggestion that other government staff were invited to visit No 10 and join the party. Finally, I explained that, under section 64A of the 1984 act, a prosecutor has six months to bring a prosecution “beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor's knowledge”. There is an upper limit of three years from the date of the alleged offence.The barrister Matthew Scott published a detailed blog shortly after my broadcast, which he had clearly been working on for much of the day. He concluded: If the party was confined to the government rooms and offices in the “official” parts of No 10, it probably did not breach the criminal law, even though it was in flagrant breach of its spirit, as well as of the official advice and guidance, much of it emanating from the prime minister himself.I think that sums it up rather well.This analysis reached you free of charge. To make sure you never miss another post, join my free mailing list. For the full service, become a subscriber.Better still, as the festive season is upon us: This is a public episode. If you’d like to discuss this with other subscribers or get access to bonus episodes, visit rozenberg.substack.com/subscribe

Baroness Hale spoke yesterday of her “huge admiration” for Israel, a country she has visited at least half a dozen times for judicial exchanges and academic seminars. Her unscripted remarks — which you can listen to by clicking the podcast symbol above — were made after the former president of the UK Supreme Court was made an honorary doctor of philosophy by Bar-Ilan University, near Tel Aviv, for her “outstanding efforts on behalf of women and minorities” and her “dedication to the protection of democracy and basic human rights”.Because of Covid travel restrictions, Hale’s PhD (hon) was awarded to her at a small ceremony in a London garden. It was hosted by Romie Tager QC, on behalf of the university. Professor Ruth Halperin-Kaddari, founding director of the Rackman Center for the Advancement of the Status of Women at Bar-Ilan university law faculty, sent a message of support.As well as paying tribute to what she described as the deep intellectual tradition of Israeli lawyers, Hale spoke of the three Abrahamic faiths:Those three religions have more in common than they have separating them — although there are important things that separate them. But one are the things that they have in common is a problem with women.In a recent conference organised by Halperin-Kaddari, Hale and other speakers looked for what she called “sensible, sensitive ways” of addressing that problem.This exclusive story reached you free of charge. For the full service, please subscribe. This is a public episode. If you’d like to discuss this with other subscribers or get access to bonus episodes, visit rozenberg.substack.com/subscribe

BBC Radio Scotland ran an interview with me this morning (recorded on Friday) about threats to the rule of law. Isobel Fraser asked about references to lefty lawyers by the prime minister and the home secretary. We also discussed the review of judicial review and the UK Internal Market Bill. Joanna Cherry QC was kind enough to mention it on Twitter and I thought listeners outside Scotland might like to hear the interview, which I have very slightly edited. This is a public episode. If you’d like to discuss this with other subscribers or get access to bonus episodes, visit rozenberg.substack.com/subscribe

Stephanie Hayward, a barrister specialising in criminal law, interviewed me live yesterday for her Instagram channel @behindthegownbarristers. We spoke mainly about my new book, Enemies of the People?You can watch the entire interview here but I thought it would be useful to post this (slightly edited) audio version so that you can also listen to it as a podcast. This is a public episode. If you’d like to discuss this with other subscribers or get access to bonus episodes, visit rozenberg.substack.com/subscribe