Justice Secretary Research Articles

February to May 2023

On 21 April, Dominic Raab resigned as Lord Chancellor and Secretary of State for Justice, to be replaced by Alex Chalk KC. On 8 May, The Times reported that the Bill of Rights Bill was to be dropped and that the Ministry of Justice had told its reporters that the new Justice Secretary had been ‘looking carefully’ at the Bill, while another Government source had described the Bill as a ‘complete mess’.

Compensation for Wrongful Conviction/Miscarriage of Justice in Hong Kong in Light of A v Secretary for Justice and Another [2020] hkcfi 427; hcal 176/2018 (11 March 2020)

Abstract Article 14(6) of the International Covenant on Civil and Political Rights (iccpr) provides for the right to compensation for wrongful conviction or miscarriage of justice. In Hong Kong, there are two compensation schemes for people who have been wrongfully convicted – the statutory scheme under Article 11(5) of the Bill of Rights Ordinance and the ex gratia scheme (also applicable to wrongful imprisonment). Although there are cases in which Hong Kong courts have dealt with the right to compensation under the ex gratia scheme, it was only in March 2020, in A v Secretary for Justice and Another, that the High Court, for the first time, dealt with a case on the right to compensation under Article 11(5). In this article, the author discusses the right to compensation for wrongful conviction in Hong Kong generally and in particular under Article 11(5) of the Bill of Rights Ordinance. The author deals with the case of A v Secretary for Justice and Another and illustrates how the High Court’s interpretation of Article 11(5) of the Bill of Rights Ordinance is likely to impact on the right to compensation for wrongful conviction in Hong Kong in the future.

Liable for Unlawful Assembly and Riot by Virtue of Liking or Comment on Social Media Platforms?

In Secretary for Justice v Tong Wai Hung [2021] HKCA 404, the Hong Kong Court of Appeal affirmed that the doctrine of joint enterprise, as a matter of statutory construction, is applicable onwards to the offences of unlawful assembly and riot under the Public Order Ordinance (Cap. 245), and physical presence at the crime scene is not a pre-requisite to establish liability. The Court argued that such an interpretation strikes a balance between public order concerns and the need to avoid the risk of over-charging. This note contends that the Court of Appeal’s decision will risk exposing numerous citizens, who can hardly be said to share culpability comparable to that of the actual and principal perpetrators of unlawful and riotous assemblies, to prosecution and conviction on questionable legal and evidential basis.

Criminalization of Voyeurism and ‘Upskirt Photography’ in Hong Kong: The Need for a Coherent Approach to Image-Based Abuse

Abstract Many jurisdictions have enacted laws in recent years to criminalize the use of image-based technologies to non-consensually observe a person’s private parts or a person engaging in a private act (voyeurism), to record images of a person’s private parts (‘upskirt photography’), or to possess, disseminate, or threaten to disseminate intimate images (‘revenge pornography’). No such offences have yet been adopted in Hong Kong, and the 2019 decision of the Final Court of Appeal in Secretary for Justice v Cheng Ka Yee has closed the door on using the existing offence of access to computer with criminal or dishonest intent to prosecute some of these behaviours. In response, the Law Reform Commission of Hong Kong expeditiously prepared a report in 2019 calling for the enactment of offences to cover voyeurism and upskirt photography. The report does not, however, consider the need for offences to cover the related behaviour of non-consensually possessing, distributing, or threatening to distribute imitate images. This article, therefore, examines the need for, and advantages of, new offences to cover such behaviours. Based on a review of newly created offences in various Australian jurisdictions, England and Wales, and Singapore, a recommendation for reform in Hong Kong is developed.

Maintaining Institutional Strength: The Court, the Act of State and the Rule of Law

With a view to strengthening Hong Kong’s institutional protection against challenges arising from national security, this paper explored, for the first time in a comprehensive manner, the relatively unexplored concepts of the act of state and fact of state under the Basic Law. It reviewed the controversial recent practice of a special advocate, and argued that the politically appointed Secretary for Justice should be confined to a political role and that an independent Director of Public Prosecution be established. It proposed ways to strengthen judicial independence and concluded that preserving the core values of Hong Kong is the best way to serve the interests of Mainland China and Hong Kong.

A streetcar named expertise

A streetcar named expertise

Travelling in the wrong direction? A critical commentary on the consultation paper Strengthening Probation, Building Confidence

The Ministry of Justice’s Consultation Paper – Strengthening Probation, Building Confidence – launched by Justice Secretary David Gauke in July 2018, represents a revisionist view of the recent history of the probation service in which many of its assertions are incoherent, disingenuous and disconnected from the lived realities of both those who offend and local communities having to deal with the impact of austerity on local services. In addition, the consultation process itself is disingenuous in that it presents the failure of the Transforming Rehabilitation initiative as one of technical oversights and misjudgements that can be put right through a series of relatively minor adjustments. Answers to the 17 consultation questions, however insightful and helpful they may be, will do nothing to deal with the underlying difficulties of Transforming Rehabilitation.

Schade in de virtuele wereld: de casus virtuele grooming

As part of a package of legislative measures concerning cybercrime, the Dutch State Secretary for Security and Justice proposes to criminalize virtual grooming, that is the grooming of a person of minor age who, for example, does only exist as an online creature. The legislator’s principle argument for criminalization is based on the harm principle. This article examines the possibility of founding the criminalization of virtual grooming on this principle.

Curative, regenerating, redemptive and liberating? The systematic production of ignorance in Michael Gove’s rhetoric on prison reform at a time of crisis

Prisons are in a moment of crisis, with a number of recent high-profile scandals receiving substantial media attention and threatening to undermine the hegemony of the institution. At the same time, the work of the current Conservative Government on criminal justice policy as a whole, and on prisons in particular, has been seen by many as a marked departure from their previous penal policy agenda, heralding a new, progressive and broadly liberal direction. Focusing on Michael Gove’s rhetoric on prison reform during his term as Justice Secretary (May 2015 to July 2016), this article uses critical discourse analysis (CDA) to examine how Gove employed a variety of discursive strategies to create an impression of a liberal, progressive reform agenda, while simultaneously reinforcing the need for an expansive and punitive prison system. Building on recent work on agnotology, it shows that Gove strategically selected, deflected, distorted and ignored the available evidence on prisons. In doing so, he effectively legitimized and reinforced the central role of the prison in the criminal justice system despite increasing evidence of its inefficacy, foreclosing discussion of genuinely radical alternatives.

Characterisation of Charges and Set-Off: A Functional View

This article considers the Hong Kong Court of Appeal’s decision in Lo Kwok Kuen Danway v Secretary for Justice [2017] 2 HKLRD 1193. In the context of a civil servant’s entitlement to pension benefits, the key dispute concerned characterisation of set-off and charges, in particular, whether and when a right of set-off would amount to a charge. It raises more wide-ranging issues in English law of security and the relationship between property and obligation, and has potential implications on banks’ credit arrangements with their customers, such as the use of contractual set-off and flawed asset. I argue the decision reflects a functional view of security, with its wider significance being that contractual rights used to create a set of personal rights functionally equivalent to security may in the future create an in rem right.

Dangerous Politics: Risk, Vulnerability, and Penal Policy (Clarendon Studies in Criminology) H. Annison. Oxford: Oxford University Press (2015) 288pp. £65.00hb ISBN 9780198728603

Dangerous Politics: Risk, Vulnerability, and Penal Policy (Clarendon Studies in Criminology) H. Annison. Oxford: Oxford University Press (2015) 288pp. £65.00hb ISBN 9780198728603

Crime, Justice and Society in Scotland

As the former Justice Secretary whose tenure spanned much of the books period of review it was with a mixture of both interest and some trepidation that I embarked on reading it. However, what I di...

Article 8 ECHR and the Disclosure of Criminal Records: Time to Reconsider R (on the application of P and A) v (1) Secretary of State for Justice (2) Secretary of State for the Home Department and Chief Constable of Thames Valley Police (Interested Party) [2016] EWHC 89 (Admin) R (on the application of G v (1) Chief Constable of Surrey

R (on the application of P and A) v (1) Secretary of State for Justice (2) Secretary of State for the Home Department and Chief Constable of Thames Valley Police (Interested Party) [2016] EWHC 89 (Admin) R (on the application of G v (1) Chief Constable of Surrey Police (2) Secretary of State for the Home Department (3) Secretary of State for Justice [2016] EWHC 295 (Admin)

The scope of legal advice privilege in Hong Kong

This article considers the recent Hong Kong Court of Appeal decision of Citic Pacific Limited v Secretary for Justice and Commissioner of Police, concerning the scope of legal advice privilege. In departing from the UK position, it was held that all documents gathered or brought into existence for the dominant purpose of obtaining legal advice are protected by legal advice privilege. This is to be welcomed for three reasons. Firstly, the dominant purpose test sits in line with the normative rationale of legal advice privilege. Secondly, the UK position is flawed as a matter of authority. Thirdly, although the ‘dominant purpose’ test appears difficult to apply, it is preferable to the competing alternatives of the sole purpose test and the substantial purpose test. In terms of the practical application of the privilege, it is submitted that the Court of Appeal should have set out a list of guidelines to supplement the dominant purpose test.

Gove set on major justice reform

Youth justice leaders outline the changes Justice Secretary Michael Gove is considering for the future

Another Failed Opportunity: Three Rivers (No. 5) Revisited in Hong Kong

ABSTRACTThis case note examines the landmark decision of the Hong Kong Court of Appeal in Citic Pacific Limited v Secretary for Justice and Commissioner of Police, where the court considered the proper definition of the ‘client’ within a company for the purpose of legal advice privilege. The Court of Appeal decided that internal documents created by employees can be privileged and declined to follow the approach in the controversial case by the English Court of Appeal in Three Rivers DC v Bank of England (No. 5). Similar to other higher courts in Australia, Singapore and the House of Lords, the Hong Kong court labels the privilege as a fundamental right and rejects the doubt cast on the traditional rationales. In doing so, Citic presents another failed opportunity to evolve this area of the law with commercial realities.

Sixteen Years On: Examining the Role of Diversity Within Contemporary Policing

The promotion of diversity formed a major plank of police reform during the late 1990s and into the 2000s. A plethora of policy statements, training programmes, recruitment drives, organizational investment, and community engagement activity followed a series of authoritative reports, culminating in the 1999 Macpherson Report. However, perhaps the nature of public debate and the cyclical nature of policy reform contributed to a subsequent sense that the ‘diversity agenda’ was complete, that the police service had ‘done diversity’, and that other priorities required attention. A key proponent of the immediate post-Macpherson reform, Jack Straw had moved from the Home Office and was Justice Secretary when, in 2009, he stated that the Metropolitan Police was no longer institutionally racist. Since then policing in the UK, and elsewhere, has faced huge challenges in terms of spending cuts that have both impacted on police budgets as well as those of other agencies dealing with marginalized and vulnerable communities. In that context, it has been understood that the promotion of diversity has become an unaffordable liberal preoccupation that has to be swept aside by the cold winds of austerity. In that—rather bleak—context the publication of a special edition devoted to issues in police diversity might seem incongruous. Contrary to some prevailing opinion, however, we argue that there are a number of reasons why the importance of diversity within policing needs to be re-stated. First, as the papers gathered here indicate, there continues to be a wide range of investment in programmes to promote diversity in the UK, in Europe, and in the USA. Incomplete, partial, and with varying degrees of success, but the promotion of more inclusive, more effective, and more legitimate police services that better reflect the diversity of contemporary global societies, continues. Secondly, as the contributions in this collection reaffirm, the development of a more diverse policing can secure a range of operational and institutional advantages to police services. In an era in which financial austerity and changing demand on police services have increased focus on the development of evidence-based policing, the research represented here (and the much wider body of literature available in general) can be used to help generate policy relating to diversity that will enhance the delivery of contemporary policing. Thirdly, diversity within policing is of continuing importance in terms of the promotion of professionalism, ethics and integrity, and public legitimacy. Although none of these related factors were

Vulnerable individuals or harmful institutions?

On 29 September 2013, the day before Chris Grayling, Justice Secretary, addressed the Conservative Conference, 21 year old Steven Davidson died. Steven had hung himself in Glen Parva YOI. In his sp...

Government-sponsored Religious Education in Hong Kong after the Catholic Diocese of Hong Kong v Secretary for Justice

This comment critically examines an important landmark case decided by the Hong Kong Court of Final Appeal, Catholic Diocese of Hong Kong v Secretary for Justice, which defined the relationship between the church and state in Hong Kong. Specifically, this Comment highlights the court’s problematic interpretation of article 143(3) of the Basic Law, which, while attempting to reach a pragmatic compromise between preserving the government’s flexibility to modify existing educational policy and safeguarding the freedom of religious organizations, is nevertheless inconsistent with the text. This comment also discusses the implications of the case on the state establishment of religion.

When a word can mean so much

Comments made recently by justice secretary Kenneth Clarke MP regarding those engaged in riots across the country will not help anyone, and only highlight the need for greater early years investment.