The Future Lawyer Weekly Update – w/c 20th January

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.

Employment Law: extension of the meaning of workers

Supreme Court rules Judges are to be classed as workers

Reported by Ellena Mottram 

A landmark case in the Supreme Court has ensured that the standard employment protection for whistle-blowers has been extended to all judges.

Claire Gilham had a breakdown and was sent death threats after highlighting the issues created by the impact of cuts to legal aid. District Judge Gilham originally wanted to make a whilst blowing claim against the Ministry of Justice after her treatment following her decision to raise concerns in the court administration. Specifically, she raised issues with poor working conditions and excessive workloads facing judges.

However, because Judges are officeholders rather than employees, Judge Gilham was not automatically entitled to the safeguards granted to whistle-blowers under the Employment Rights Act.

Sections 43A to 43L of the Employment Rights Act 1996 ensures workers are protected from being subject to any detrimental treatment because the individual has made a protected disclosure.

However, in 2017 the Court of Appeal ruled that whistleblowing protection could not be extended to her because she could not be classed as a worker.

The Supreme Court has however ruled that District Judge Claire Gilham could be classed as a worker. As a result, she would be entitled to the same whistleblowing protection. In doing so the judges unanimously ruled contrary to the Court of Appeal ruling in 2017 which held she could not be classed as a worker. In delivering the judgment, Lady Hale highlighted that subjecting a whistle-blower to detriments such as bullying interferes with their right to freedom of expression, protected by article 10 of the European Convention on Human rights and denying her those remedies would amount to discrimination against her.

Speaking after the judgment was given, she highlighted that judges are just as in need of protection when whistleblowing, as the point of whistleblowing is to give confidence to individuals that it is sale to raise malpractice within any organization.

District Judge Gilham, who still sits as a District Judge in Manchester, highlighted that extending the protection offered to whistle-blowers to judges would only enhance the independence of the Judiciary which is a valuable constitutional safeguard which is good for justice.

This ruling extends the whistle-blowing protection of the Judges but the solicitor acting on behalf of Judge Gilham highlighted the ruling would also have an impact on others who are classed as officeholders. This category extends to the clergy, trustees and many company directors and secretaries.

The ruling by the Supreme Court means her case can return to an employment tribunal where the merits of her claim will be considered. Originally, the Ministry of Justice argued an employment tribunal did not have jurisdiction to consider the merits of her claim because she could not be classed as a worker within the meaning of the Employment Rights Act.

Find out more here or here.

Law: surveillance in courts

TV camera to be allowed in England and Wales’ Crown Courts

Reported by Laurence Tsai

The new legislation will enable high-profile criminal cases to be televised for the first time but will be limited to the judges’ sentencing. There is a difference of opinion from a range of stakeholders; some members of the judiciary are welcoming the move, whereas others, such as the Bar Council are wary that this may result in personal attacks on judges.

In England and Wales, filming high-profile cases, such as murder and sexual offences in the Crown Courts has generally been refused as key figures in such cases, such as victims, witnesses and jurors are already intimidated and possibly afraid – to add a camera for the country to see would only exacerbate the situation and may deter people from taking part in the trial process. The public can watch the broadcast online, but there will be a 10- second delay to live broadcasts to avoid disturbances and any reporting restrictions. Importantly, to ensure the filming respects the interests of vulnerable witnesses and does not intimidate such key characters in high-profile cases, the filming will be restricted to the judge’s sentencing, so no other person will be filmed.

It is envisaged that the new law will take around three months to pass, meaning first broadcasts should take place in around April or may once the legislation has passed. The change must be approved by the justice secretary and lord chief justice. The legislature’s move follows from a successful three-month pilot period that allowed not-for-broadcast sentencing remarks to be filmed in eight Crown Courts.

The Lord Chief Justice, Lord Burnett, welcomed the move by highlighting that it is vital that the public is sufficiently informed and aware of what goes on in a courtroom and can gain a glimpse of the criminal justice system. Other notable figures who endorse the move hope that this would enable greater transparency and public understanding of the justice system and scrutiny of courtroom hearings. TV cameras will promote open justice and improve public confidence in the courts, which could add significant value and assist in the rule of law. It is not disputed that there will be certain reporting restrictions, including showing only the judge’s sentencing, to ensure vulnerable characters are not depicted and to preserve the value of a fair trial.

However, whilst some believe this marks a radical innovation, this initiative has triggered warnings from the Bar Council. Some believe that showing only the judges’ sentencing remarks may provoke unjustified criticism of judges and may lead to them being personally attacked. Others have stressed the significance of ensuring that nothing should compromise the interests of justice. Although this initiative may indeed enable the public to understand the realities of the criminal justice system, some reservations are that the public may not fully appreciate a judge’s particular sentence, as they haven’t had the opportunity to understand the evidence presented during a trial.

Find out more here or here.

Law: sexual misconduct

Emphasis on Sexual Misconduct cases among legal professionals

Reported by Jutha Cheewat

According to the Guardian, 63 cases reported to the Solicitors Regulation Authority (SRA) were of sexual misconduct. The number was said to have risen more than 50% in the last five years, from 25 in 2015 to 63 in 2019.

The figure was requested by the partner at GQ Littler, Sophie Vanhegan. She commented that the perception and approach to the issue have gradually changed and people are more willing to speak out. She emphasised “The increases coincide with the growth of the #MeToo movement, and likely reflect broader cultural changes arising from that,”  “Although there has been a progress among UK law firms, such as restrictions on alcohol consumption at work events, these figures show that there is still progress to be made.”

According to a Global Survey, bullying can occur to both genders. 62% of women and 41% of men admitted that they had been bullied, but only 38% of females and 6% of males reported the harassment.

A spokesperson from Baker McKenzie said to the Guardian, after high-profile sexual harassment cases that firms are willing to cooperate fully because “We’ve learned much from this episode, recognised what went wrong and have well-established and effective policies and programs in place across the firm.”

Many magic circle law firms also have taken measures, as Linklaters launched the ‘Sober Supervisor Programme’ while Slaughter and May banned their subsidised ski trip after a reported allegation.

Find out more here.

Law: drug issues in custody

UK drug custody problem has doubled in five years

Reported by Emma Ducroix

According to recent research, prisons are not equipped to stop drug supply and security standards vary from prison to prison. The research found prisons in poor condition, overcrowded and struggling to retain experienced staff. The report argued that the use of short-term prison sentences was counterintuitive and contributed to an overcrowding in the prison population.

Analysis of official figures showed the use of community sentences for minor offences had decreased 52% since 2010, despite evidence that they are more effective and around a ninth of the annual cost of prison. The thinktank recommended the Ministry of Justice consider banning or reducing the use of short custodial sentences.

The analysis of survey data from HM Inspectorate of Prisons found that the proportion of inmates who reported developing a drug problem in prison rose to almost 15% between 2013-14 and 2018-19. It pointed to the example of HMP Nottingham, a category B prison with high levels of violence and drug use.

Last year the then prisons minster, Rory Stewart, said the prisons system had been unprepared for the arrival of new psychoactive drugs such as spice and had been playing catch-up ever since. Spice, the most widely used psychoactive substance, is a liquid that can be sprayed on paper, which is then ripped up, added to roll-up cigarettes and smoked. It has been smuggled into prisons after being sprayed on children’s drawings and letters.

Aidan Shilson-Thomas, a Reform researcher and the author of the report, said: “There must always be a place in prison for those who commit serious crimes. However, prison must also be an opportunity for inmates to change their behaviour.

“Stabilising the system means stemming the flow of drugs, reducing overcrowding, fixing the crumbling estate and improving officer retention. Its long-term sustainability requires a serious conversation about how many people we lock up and for how long. Failing to act will mean poorer social outcomes, more reoffending and ultimately huge costs to the taxpayer.”

A Ministry of Justice spokesman said: “Illicit substances pose huge challenges in our prisons which is why we are investing £100m in airport-style security – including x-ray body scanners – to stop them getting in.

“This is part of our £2.75bn investment to make jails safer for offenders and staff, while working closely with healthcare providers to ensure prisoners have the support they need to live drug-free upon release.”

Find out more here.