The Future Lawyer Weekly Update – w/c 7th December

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Justice

Justice at a standstill

Reported by Katie Henderson

The backlog of court cases means that there are nearly a quarter of a million waiting for justice; these figures cover only victims and witnesses in London alone. The data covers all victims and witnesses, including “professional witnesses” such as police and relate to “pre-first hearing” data, the start of the judicial process. The situation is so grave that the mayor insists justice is at a standstill. He states, “our already stretched services in the capital are now at capacity and can no longer provided the support for any new victim coming into the system”.

Sadiq Khan has called for urgent help and proposed the creation of a large-scale secure facility to alleviate some of the high priority cases. Despite the promises from the Ministry of Justice of a network of Nightingale courts, this alone will not solve the problem. Rather the mayor contends “there is a need for a facility with cells for holding defendants, adequate security measures to ensure the safety of all victims and witnesses and a large enough space to hear a multi-defendant’s case also while maintaining social distancing measures”.

After writing about this issue in the first lockdown, it is clear to see that little has changed; if anything, the problem is exacerbated. Serious risks face the victims and witnesses. The urgency of the situation is illustrated by the attempted suicide of two victims who found out their trial was delayed. It is imperative that the emotional wellbeing of those involved are carefully considered when cancelling or adjourning trails. The future, however, is not promising. Analysts have predicted that by 2024 the backlog of cases could rise to 200,000; a dramatic contrast to the caseload of Crown Prosecution Service in June 2019 which peaked at 100,000. These figures suggest an urgent need for reform without it, it has been warned, the criminal justice system would cease to function in the next four years.

It is important to not view these cases as just data on a page, the serious implications of this problem are demonstrated in the details of recent cases. One such case involved a man who was violently assaulted by three men, an attack which was homophobic and transphobic. The incident occurred in May 2019 and the initial court date was set for the following summer, however the victim was informed only the evening before that the hearing had been cancelled. The hearing was delayed for several weeks but was then again cancelled at the last moment. The only explanation the victim was given concerned ‘complications around social distancing’. Is this an adequate procedure when considering the grave suffering caused to the victim? The victim has said “this has been a terrible blow… the inconsistency of communications and the failure of the responsible agency to bring this case to trail has been hard to bear”.

In response to these wider issues, a spokesperson for HM Courts and Tribunals Service said: “Our response to the pandemic has been world-leading. We’ve rolled out new technology, introduced Saturday sitting hours, invested an extra £40m in victims’ services and already opened 16 Nightingale courts, including two in London, to keep the justice system going. As a result, outstanding cases in the magistrates have reduced and the number being resolved in the crown court has trebled since April.”
This issue is likely to be ongoing as the long-term effects of the pandemic are felt; perhaps only a major reform will see real change.

Find out more here or here.

Environment

Lawyers begin drafting legal definition of ‘ecocide’ with view to criminalizing ecosystem destruction

Reported by Jasmine Cracknell

A group of leading lawyers have begun work on drafting a legal definition of ‘ecocide’.The panel of 13 legal experts includes Philippe Sands QC, a barrister at Matrix Chambers, and Florence Mumba, a former judge at the International Criminal Court (ICC).

The group, which has been convened by the Stop Ecocide Foundation, hopes their definition of ecocide will ultimately be inserted into the Statute of the ICC, to sit alongside crimes such as genocide, war crimes, and crimes against humanity. Jojo Mehta, Chair of the Stop Ecocide Foundation, told the Guardian that recognition by the ICC would mean “there would be lots of options for prosecuting [offending corporations] around the world.”
“In most cases ecocide is likely to be a corporate crime. Criminalizing something at the ICC means that nations that have ratified it have to incorporate it into their own national legislation.”
This means companies in China, India and the US, countries which are not members of the ICC, would not be bound by any new law.

Whilst the group are not expected to finish their work until early 2021, Mehta explained the definition could include acts like “Amazon deforestation on a huge scale, deep sea bottom trawling or oil spills.”
Philippe Sands QC said: ’The time is right to harness the power of international criminal law to protect our global environment – 75 years ago, “against humanity”and “genocide”; were spoken for the first time, in Nuremberg’s courtroom 600, and my hope is that this group will be able to draw on experience since that day to forge a definition that is practical, effective and sustainable, and that might attract support to allow an amendment to the ICC Statute to be made.’

Several countries have already voiced their support for the concept of criminalizing acts of environmental destruction. The FT recently reported that France is set to be the first country to make ecocide a crime. The French government has instructed an environmental lawyer to advise on criminalizing the act of ‘greenwashing’, where companies purport to be eco-friendly, but in reality, are not. Should ecocide become a crime in France, it would be punishable by up to a €4.5m fine and 10 years in prison.
The Belgian government is also taking steps to include ecocide in its new penal code.
At the ICC’s annual assembly in December 2019, small island nation Vanuatu and the Maldives also called for ‘serious consideration’ of the issue.

Find out more here and here.

Law

High Court rules under 16’s unlikely to be able to give informed consent regarding gender reassignment

Reported by Ellena Mottram

The high court has ruled that children under the age of 16 are unlikely to be mature enough to give informed consent when it comes to being prescribed puberty-blocking drugs. Three senior judges also ruled doctors may need to consult the court for authorization involving teenagers under the age of 18.
Twenty-three-year-old Keira Bell brought the action against Tavistock and Portman NHS trust and the mother of an unnamed 15-year-old who was on the waiting list for treatment. Ms Bell began taking puberty blockers at the age of 16 however has since detransitioned and has stated that ‘It was heart breaking to realize I’d gone down the wrong path’.

Ms Bell argued that the clinic should have challenged her more regarding her decision to transition to a male as a teenager after she was prescribed puberty blockers following three one-hour appointments.. The unnamed mother also argued there was little attention given to why a child may feel they were the wrong sex before puberty blockers were given.

The Claimants argued there was ‘a very high likelihood’ children who start taking the blockers will later begin taking cross-sex hormones which will cause irreversible changes. The trust however argued that these were entirely separate stages of treatment with one not necessarily leading to the other.
Dame Victoria Sharp, Lord Justice Lewis and Mrs Justice Lieven ruled ‘It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. They want on to say that ‘It is doubtful that a child aged 14 or 15 could understand and weigh the ling-term risks and consequences of the administration of puberty blockers.

Whilst those who are aged 16 and over are presumed to have the ability to consent to medical treatment however the court held that in this instance as ‘the treatment is as yet innovative and experimental’ clinicians ‘may well regard these cases where the authorization of the court should be sought prior to commencing the clinical treatment.’

In short the judgment provides guidelines for how trusts handle young patients who experience gender dysphoria. The Judges however highlighted that their decision was in relation only to the informed consent of a child or young person and not whether the treatment itself was appropriate.

A charity for trans children, Mermaids, has however described the decision as a ‘devasting blow’ for young trans people across the country. The charity highlighted that ‘every young person has the right to make their own decisions about their body and that should not differ because somebody is trans.’
The trust runs the UK’s main gender identity development service for children and have suspended new referrals for puberty blockers for under 16s. The trust has also highlighted that in future cases they will only provide the prescription where the court authorizes it but has nevertheless confirmed that it would seek permission to appeal against the judgement.

You can find more here or here.

Brexit

Negotiations after the transition period

Reported by Laurence Tsai 

With the transition period ending on 1 January 2020, the UK and EU have agreed to hold last-minute negotiations to try to reach a deal. Officials have stated that roughly 97% or 98% of the deal and legal text have been agreed, and so, it is more likely than not that the two sides will reach a deal.
Talks were initially halted due to major issues that neither side could agree upon. However, as the transition period creeps in closer, both sides seem confident that a deal can be reached. The key elements of contention between the UK and EU revolve around fishing rights, fair competition and enforcement arrangements.

Fishing rights
A main reason for Brexit was the hope that the UK, post-Brexit, will regain full control of its waters, which are currently shared with Europe. In contrast, the EU wishes to retain shared access, meaning the UK can continue fishing in EU waters and the EU can continue fishing in UK waters.
A major breakthrough in the Brexit negotiations just last week shows that the two sides may have reach a compromise. This would give EU boats access to British waters within the UK’s 200-mile exclusive economic zone, with a transition period for phasing in changes between five and seven years.

Fair competition
The EU and UK also diverge on labour rights and environmental standards. The EU is insisting on a unilateral right to take action against imports of British goods if Britain breaches level-playing field rules.
Various member states are standing their ground, stating that they will reject any deal that does not guarantee to protect their economies from unfair British competition. Thus, the EU have argued that both sides should agree a ‘common high standard’ to ensure there is a level playing field, yet agreeing a minimum standard with the EU may be seen as undermining British sovereignty.

Enforcement arrangements
The EU has suggested a system that acts as an independent arbiter if either side deviates from the terms of the deal. Although the EU believes this is a reasonable demand, this idea undermines British sovereignty as it would mean the UK is still beholden to EU courts even after the transition period has expired.
Considering the UK government’s past actions, however, one can see the rationale for Brussels’ demand.
Only recently did the UK propose the internal market bill, which consisted of controversial clauses that would allow ministers to override the EU withdrawal treaty that Britain signed last year regarding Northern Ireland. Although the controversial clauses were removed by the House of Lords, the House of Commons still has the power to reinstate those clauses, potentially throwing away any last-minute hopes of an EU-UK trade deal.

Economic impact of a no-deal Brexit
On the chance that Mr Johnson goes for a no-deal, it cabinet ministers have stated that he will have “100% rock-solid cabinet support”.
Economists are generally in agreement that, short to medium-term, Britain will be severely economically harmed by a no-deal outcome, especially since the Covid-19 pandemic has already damaged the economy enough. The independent Office for Budget Responsibility set out, last month, that a no-deal would cost the UK economy roughly £40bn next year (a reduction of 2% of GDP). There is some debate surrounding the long-term economic impacts of a no-deal as some argue that a no-deal would enable Britain to form its own deals. To that end, the outcome of Brexit negotiations depend heavily on economic factors and political factors.

British sovereignty is one of the cornerstones behind the Brexit negotiations with Brexiteers announcing that a fair deal will work for both sides only if the EU is willing to respect Britain’s sovereignty and its ability to make its own rules. Whether we get a deal or no-deal seems to depend heavily on the importance of upholding the principle of sovereignty.

You can find more here or here.