Raising the judicial retirement age to 75 could enhance diversity on the bench and motivate more women and lawyers from ethnic minority backgrounds become judges, a former lord chancellor has stated.Sir Robert Buckland MP shared with the House of Commons that raising the mandatory retirement age by five years would offer ‘a huge opportunity, not just for women but for people who come to the legal profession slightly later in their career’.Discussing at the second reading of the Public Service Pensions and Judicial Offices Bill on Wednesday, Buckland said that the current retirement age meant the judiciary was failing to take advantage of ‘many talented men and women at the height of their career’.Buckland stated he disputed the suggestion that increasing the retirement age would create a negative impact, stating ‘that worst-case scenario is based on a failure to act’. The raise ‘could be a spur to the Government and the Judicial Appointments Commission to do even more to attract women, people from an ethnic minority, and people who join the profession late to a judicial career’, he told MPs.Buckland added ‘it is incumbent on the Ministry of Justice, the Judicial Appointments Commission and others interested in and passionate about diversity to do more to attract people of diversity to the judiciary,’Chair of the justice select committee, Sir Bob Neill, detailed there was ‘a number of distinguished former members of the High Court and the Supreme Court who have had to retire at 70, with many years of service still to give, and still do so, often sitting as arbitrators in important areas of commercial litigation and mediation’.Neill further stated that ‘we do need to make the judiciary more diverse and more representative, but the way to do that is not to keep down the retirement age to such a low level that able people are needlessly lost to judicial service.’Liberal Democrat MP Christine Jardine, however, highlighted concerns that the change ‘could have a negative impact on the diversity of the judiciary, which at the moment is dominated by older, white men’, so did Labour’s Matt Rodda, who questioned the government to offer additional details on how it would ensure  the raise did not ‘make it more difficult to increase diversity in our legal system’.The chief secretary to the Treasury, Simon Clarke stated that the government’s modelling proposed that increasing the retirement age would ‘retain about 400 judges and 2,000 magistrates per year’.

Lawyers have voiced their disappointment with reports of judges requesting to see evidence of positive Covid tests before sanctioning a remote or adjourned hearing.An online memo from the recorder of Winchester, that covers both Winchester and Salisbury Crown courts, noted that no application for an adjournment will be considered unless ‘some evidence’ showing a positive Covid test by a defendant or an advocate.In light of recent problems acquiring PCR tests, the memo stated that the court would accept a photograph of a positive lateral flow test as evidence.However, advocates on social media have questioned why such evidence needs to be provided and proposed that judges are questioning their honesty and integrity.Vice chair of the Criminal Bar Association, Kirsty Brimelow QC said she had highlighted the issue this week with HM Courts & Tribunal Service, which will be followed up with the senior presiding judge.Beheshteh Engineer, a barrister with 36 Crime chambers, stated: ‘Even if there was an epidemic of lying lawyers, I won’t be providing proof of medical status (not for covid or anything else) on principle. I am trusted not to lie to the court, and that includes on the subject of covid tests.’Bernard Richmond QC, from Lamb Building, noted: ‘The system works because we value our reputation for integrity and our word is accepted. The criminal bar puts up with a lot but, this is a straw which might just break the camel’s back. Either trust us or don’t.’Chair of the Bar Council’s disability panel, Faisel Sadiq noted that the underlying message suggested an assumption that some counsel are concealing the truth regarding their lateral flow tests. ‘I am very concerned about where this could lead if not nipped in the bud,’ he added.

Court closures have ‘significantly contributed’ to the backlog, and the government needs to contemplate reopening recently closed courts to expand capacity. In recently published evidence to the public accounts committee, it has been identified that 11 court buildings which have recently closed but not yet been sold, ‘could potentially be opened at a minimal cost’. The reopening of these courts ‘would also contribute to their local economies, combining economic renewal and access to justice’, it stated.The Law Society additionally proposed that the government should ‘commit to fully funding court repairs so existing court rooms are not closed due to maintenance issues’, which would be ‘another relatively inexpensive way of boosting capacity in the courts’.Chancery Lane has backed measures introduced to address the backlog, including Nightingale courts, extra investment in the justice system and the dismissal of the cap on sitting days. However, it alerted that ‘the shortage of judges, court staff and practitioners to attend cases is becoming a serious concern that will affect efforts to lower the criminal courts backlog if it is not addressed through long-term investment’.‘Because the system has been underfunded for so long, it will not be possible to generate the necessary additional capacity quickly, but if left unaddressed the problem will only grow,’ the Law Society detailed.The shortage of resources available to defend solicitors will also ‘limit efforts to tackle the backlog’, it continued, with multiple firms currently working at full capacity and therefore unable to ‘support a greater number of cases’.The Society highlighted that, while the backlog was ‘worsened and exacerbated’ due to the pandemic, the issue pre-dates it. ‘The backlogs primarily lie in prolonged underinvestment in the justice system, including capping the number of court sitting days, reductions in court capacity and court rooms remaining idle in recent years,’ it reported.The obligation to expand the Ministry of Justice’s budget by £2.2 billion over the spending round was also encouraged, but the Society stated ‘this level of investment must continue and must extend to all parts of the criminal justice system’ in order to bring the backlog ‘down to manageable levels’.

This season’s Formula 1 championship reached a dramatic conclusion last weekend, following Red Bull’s Max Verstappen overtaking of the Mercedes of Lewis Hamilton on the penultimate lap. The finale was not necessarily expected to be entangled with such controversy, but given the fact a lawyer was brought to the track in advance, suggested that the race was not likely to proceed without a problem.Soon after Verstappen’s win, it emerged that Mercedes had barrister Paul Harris QC accompany the team in Abu Dhabi for the grand prix, and without question used his services after the chequered flag in order to protest against the result.This stimulated ample discussion as to whether or not Mercedes was preparing for a legal battle rather than a race.Following the event, Red Bull was quoted commenting: ‘We are a race team. We did not come here with a QC. We did not come ready to protest.’Since last weekends events, the Mercedes challenge appears to have failed, with Formula 1 officials turning down two protests against the result, with a further appeal still in discussion. 

In person hearings are likely to continue despite the government’s ‘Plan B’ to deal with the increasing coronavirus cases, with decisions on remote attendance left to the preference of judges.Boris Johnson announced last night that where possible, people should work from home as of Monday, as part of the latest restrictions introduced to tackle the rise in cases of the Omicron variant.HM Courts & Tribunals Service guidance for courts and tribunal users was updated this week to mirror the prime minister’s announcement, but does not seem to comprise any meaningful change.A Ministry of Justice spokesperson declared that it will continue to be a matter for individual judges to choose whether or not to use the cloud video platform, or alternative means of organising a remote or hybrid hearing, saying a ‘top-down missive’ was doubtful.A spokesperson for the judiciary also noted that there was unlikely to be any adjustments to the operation of the courts, highlighting that lawyers and court staff are considered essential to the running of the justice system, and had been considered key workers during the height of the pandemic.A criminal barrister at Pump Court Chambers, Nigel Pascoe QC, remarked on Twitter that circuit leaders should ‘consider a joint statement which seeks to interpret that new guidance in practical terms’. ‘The bar should not be required to take greater risks than other sectors,’ he continued.In the meantime, London firm Kingsley Napley has notified all staff who are able to work from home to do so immediately, with internal meetings to be conducted remotely where possible, however their office continues to stay open for meetings if people are happy to. Leigh Day, a national firm has also informed staff to work from home unless it is not possible to do so.

The Human Rights Act 1998 would be succeeded with a ‘bill of rights’ under proposals revealed by the lord chancellor this week. The legislation will pay particular attention to ‘quintessentially UK rights, such as freedom of speech and the right to trial by jury’, Dominic Raab MP said. Launching a 118-page command paper on the plans, Raab stated that the proposals ‘reflect the government’s enduring commitment to liberty under the rule of law’.The thoroughly trailed reforms seem to extend beyond those proposed by the Independent Review of the Human Rights Act that was introduced a year ago by Raab’s predecessor, Robert Buckland. However the government has supported the review’s suggestions for amending section 2 of the Human Rights Act, which calls for UK courts to ‘take into account’ Strasbourg rulings. This has ‘indirectly resulted in the supremacy of the UK Supreme Court being undermined by Strasbourg decisions,’ the paper details.The government’s proposed course of action would necessitate UK courts to firstly consider whether a rights issue can be solved domestically, prior to considering European convention rights or Strasbourg case law. The paper cites Magna Carta and the 1689 Bill of Rights, suggesting that ‘there may be scope to recognise trial by jury in the bill of rights’. However this would apply only to the extent that the right to trial by jury is ordered by each UK jurisdiction.On freedom of expression, the bill of rights intends to ‘provide more general guidance on how to balance the right to freedom of expression with competing rights’ rather than leaving this to the courts. The measure would make specific provision to ensure the protection of journalists’ references.  The new measure will reinstall a ‘sharper focus on fundamental rights’, including confirmation that the ‘unmeritorious cases’ are sifted out at an earlier stage. A new ‘permissions stage’ would need claimants to verify that they have experienced a ‘significant disadvantage’ prior to a human rights claim being apprehended in court. Raab reported to the House of Commons that the reforms will inhibit dangerous criminals from relying on article 8 (right to respect for private and family life) to prevent deportation. Raab stated article 8 claims account for approximately 70% of all successful human rights disputes by foreign national offenders against deportation orders.He detailed the UK’s independent judiciary and parliamentary sovereignty as the ‘cornerstone and foundations of our democracy’. In line with this, the government intends to ‘sharpen’ the division of powers by reforming the section 2 duty to take account of Strasbourg case law. This, he noted, ‘has at various times been interpreted as a duty to match Strasbourg jurisprudence which is neither necessary nor desirable’. The UK’s Supreme Court would be the ‘ultimate judicial arbiter’ for clarifying Convention rights in this country.To justify the proposal to introduce a ‘permission stage’, Raab remarked ‘one of the consistent complaints we hear from the public is that human rights can be subject to abuse’.The move to solutions will also be reformed in order for courts to provide ‘greater consideration to the behaviour of the claimant and wider public interest’ when deciding compensation. ‘It isn’t right that those who have broken the law can then reach out and claim human rights to claim large chunks of compensation at the taxpayer and wider public’s expense,’ Raab stated.

The lord chancellor has revealed to MPS that in order to offer rape victims confidence in the current justice system to step forward, criminal justice scorecards will be issued by Christmas.When thoroughly questioned regarding the route he intends to take to assist prosecution of perpetrators of violence against women and girls, Dominic Raab announced that he also hopes to discourage defence lawyers from the ‘widespread practice’ of advising the accused of choosing to plead guilty once they reach the courts.In line with the government’s plans to return the amount of rape cases passed through courts to the levels seen back in 2016 by the close of this parliament, performance scorecards were first made public back in June.  Raab notified the House of Commons that his department would publish scorecards not only for general crime, but specifically for rape, to monitor performance at every stage in the system. ‘That will help to spur an increase in performance, which will give victims the confidence to come forward and get prosecutions to court,’ he stated.‘It will be important when we publish the criminal justice scorecards for rape that we can see not just at a national level, but – in due course, following that – at a local level, which areas are getting it right and why those other places are not following best practice, and that we ensure we can correct the gaps.’Section 28 pre-recorded cross-examinations for endangered victims and witnesses has been undergoing trials by the government.  When questioned when section 28 procedures will be prolonged nationally, Raab commented: ‘That is incredibly important not only for the victims of rape, but for other vulnerable victims. The evidence so far from the pilots and the trials needs to be gleaned and carefully evaluated, but I can tell my honourable friend that this is something that I want to look at very carefully not just because of the ability to secure a more effective prosecution, but to deter defence lawyers from perhaps not the universal practice, but certainly the widespread practice of encouraging the accused to wait until the moment in court before they take the decision on whether to plead guilty.’

Lord chancellor Dominic Raab has announced that the government’s human rights and judicial review reforms will not strive to take any alternative routes with parliamentary inspection.Dominic Raab appeared in front of the Joint Committee on Human Rights this week, and was questioned about an interview he gave with the Sunday Telegraph in October, in which he divulged that he is drawing up a ‘mechanism’ to enable the government to propose ad hoc legislation that would ‘correct’ court judgments that ministers surmise are incorrect.Harriet Harman MP, the Committee chair, highlighted that parliament can alter the law by validating legislation, which the courts must then put in place. ‘So what is this mechanism?’ she asked.Raab replied: ‘I’ve said you’ve got two options really. You just say that parliament brings forward any legislation it wants to correct any piece of case law that it doesn’t like at any particular point and that’s what the constitution says. A number of judges have said “of course, that’s what parliament is there for”. And there’s a separate question – and it’s a moot point at this stage – whether or not there’s a mechanism to allow that to be done in a specific or special way.‘But let’s be very clear about it. You would want to make sure you retained all of the due scrutiny you get. I’ve talked about the options for it. But let me reassure you, we would not be talking about taking any shortcuts with due parliamentary scrutiny. I know exactly where that’s going.’Harman noted that it was not just to do with scrutiny but decision-making. ‘It’s not just that parliament scrutinises legislation,’ she said. ‘Parliament decides on legislation. Government doesn’t decide on legislation. What I just want you to be clear on, is you’re not talking about the government being able to change the law other than bringing the law to parliament and seeking parliament’s agreement for parliament to decide to change the law.’Raab responded: ‘Of course. Parliament would have to make the decision. You’re absolutely right. Having talked about separation of powers, the principle of separation of powers and law-making prerogatives of parliament are absolutely crucial.’The lord chancellor remained guarded on the government’s reply to the independent review on the Human Rights Act, and if it will include a British Bill of Rights, but reassured he would consider any proposals.

The Law Society has welcomed reforms that will ensure that disabled and LGBT+ victims of hate crime are given the same level of protection as those targeted due to their religion or race.After a lengthy review was carried out of hate crime and hate speech laws, the Law Commission issued several suggestions to address inconsistencies in how hate crime laws handle different safeguarded characteristics. For example, aggravated offences, which can lead to stricter sentences, at present only apply to racial and religious hostility.The commission suggests lengthening aggravated offences to embody all existing characteristics in hate crime laws: race, religion, sexual orientation, disability and transgender identity.Stephanie Boyce, Law Society president I. stated: ‘In our consultation response, we said it was illogical for aggravated offences to only apply to race or religion-based hostility and should include enhanced sentencing provisions on hostility based on transgender identity, disability and sexual orientation.’Subject to further confirmation, the commission has recommended adding sex and gender as protected characteristics for the purposes of aggravated offences and longer sentencing, taking into account three possible reform options. However, it concluded that the propositions ‘create more problems than they solve’.Boyce sated: ‘We raised concerns about the suitability of this proposal as it creates problems on how to deal with forced marriage, FGM, domestic abuse and sexual offences, which are predominantly against women. The prosecution’s already difficult task in proving rape and other sexual offences could be compounded by having to prove gender-based aggravation too. It would further complicate these trials and increase the trauma for victims.’Alternatively, the commission proclaimed that the government should review the need for a particular offence of public sexual harassment.