The Times - UK (2022-05-26)

56 Thursday May 26 2022 | the times

Law

5

Grade II listed Snaresbrook Crown Court in east London is one of many crumbling courts undergoing extensive repairs

Calls mount

for a courts’

inspectorate

An overseeing body could boost accountability,

transparency and efficiency. By Catherine Baksi

A lack of data and “significant gaps” in
the inspection regime for the justice
system have hampered the govern-
ment’s ability to tackle the lengthy de-
lays, according to MPs.
In its latest report, the cross-party
justice select committee called for a
courts’ inspectorate to be created that
would aim to increase accountability
and transparency in the “creaking” jus-
tice system.
The proposal was backed by Andrew
Cayley QC, the chief inspector for the
Crown Prosecution Service, who fa-
vours an even broader court inspection
regime to scrutinise the operation of
the disjointed parts of the system, par-
ticularly regarding the listing of cases.
The process of listing — the decisions
about which judges will deal with cases,
when and where they will be heard, and
crucially, which cases take priority — is
a thorny one.
It is regarded as a judicial, rather than
an administrative function, and some-
what shrouded in mystery. When crit-
ics suggest greater openness or effi-
ciency of the process, judges can fear,
perhaps not without justification, gov-
ernment mission-creep on to their turf.
Appearing before the justice com-
mittee and acknowledging the sensitiv-
ities, Cayley compared the “tough job”
of listing to “spinning 20 plates in the air
at the same time”. And while he re-
spected the work of court staff and resi-
dent judges, he criticised the “old-fash-
ioned” listing process, which he said

should be improved in the digital age.

Sir Bob Neill, the Conservative MP

and chairman of the justice committee,

acknowledges that listing is a matter for

the judges, but says that the courts are

a public service and it is “perfectly

reasonable” to expect scrutiny of their

administration. “HM Courts & Tribu-

nals Service [HMCTS] does not deliver

customer service in a satisfactory way,”

he says, with cases taken out of lists at

the last minute without warning or

proper communication to the parties or

their lawyers.

Routine inquiries made by lawyers

and litigants about case listing go unan-

swered by the courts, says Neill, adding

that MPs also have problems getting in-

formation. Even if listing is a judicial

function, Neill suggests that decisions

need to be communicated and ex-

plained to the parties and public.

“There needs to be better public dis-

cussion and understanding of what list-

ing is and how the process works,” Neill

says, so people understand which cases

take precedence.

Giving evidence before the commit-

tee last week, Lord Burnett of Maldon,

the lord chief justice, attempted to ex-

plain the rationale for the approach

taken in the criminal courts.

The system, Burnett said, is not “first

in, first out”, but largely dictated by the

custody time limits imposed by parlia-

ment — the length of time a defendant

can be remanded in custody before

trial. “When it comes to deciding priori-

department”, but he tells The Times it is

“pretty deficient and needs to sharpen

up its act”.

Getting information from the minis-

try, he adds, particularly concerning

the county courts, where so much is still

done on paper, is difficult.

It is no secret that the criminal justice

system is in crisis. Crime is rising while

prosecutions fall, almost 60,000 cases

are waiting to be heard in crown courts.

The lord chief justice expressed con-

cerns about the “systemic problem” of a

lack of judges, the shortage of barristers

caused by the “serious attrition on re-

muneration rates that came through

legal aid”, and the poor condition of

many court buildings. He also told MPs

on the justice select committee that de-

lays to trials were increasing.

For almost seven weeks criminal bar-

risters have been taking quasi-strike

action over legal aid rates and look set

to escalate their action. Some criminal

defence solicitors in London decided

last week to stop accepting the most

poorly paid work, such as burglary, and

others around the country have sig-

nalled their desire to follow suit.

But the family and civil courts are

also under strain, and the committee

is particularly concerned about the

lack of scrutiny there and in the

coroners’ court. It is argued that an

inspectorate would encourage greater

investment across the board. A courts

administration inspectorate, says Neill,

could also take a role in inspecting the

work of the coroners’ court, where, he

argues, there is a “considerable lack of

transparency”.

Supporting the call for better data

and scrutiny, Natalie Bryom, the direct-

or of research at the Legal Education

Foundation, says that an inspectorate

could “shine a light on where the

system is not working and to enhance

the transparency of a system too often

shrouded in secrecy and poor practice”.

A spokesman for the Ministry of

Justice highlighted the investment and

measures taken during and after the

coronavirus pandemic, including the

continuing use of Nightingale courts.

The ministry takes the view that an

inspectorate is unnecessary because

the “work of the courts and tribunals

is already scrutinised by numerous

parliamentary committees and inspec-

torate reports”.

ties for listing cases, the custody cases

are inevitably at the top of the list.”

While there is “no dictated hier-

archy” of how these cases are listed, he

said judges will try to list cases involv-

ing vulnerable witnesses or complain-

ants, or young people, as soon as poss-

ible. In addition, cases attracting high

public concern, such as serious sex of-

fences, are also “pretty high up any pri-

ority for listing”.

Highlighting the shortage of judges

and staff and poor physical condition of

the courts, the committee also suggests

that many of the problems have arisen

because of a failure to identify emerg-

ing trends in caseloads.

To ameliorate this, the MPs advise

officials to improve the ministry’s data

collection to inform decision-making

and ensure court capacity is sufficient

to process cases. The Ministry of Jus-

tice, says Neill, calls itself a “data-driven

‘HMCTS does not

deliver customer service

in a satisfactory way’

ALAMY

Times Law

Editor Jonathan Ames

020 7782 5405 [email protected]

Advertising and marketing

For print and online: Jeanine Kiala

020 7782 7518 [email protected]

ed $1.3 million in one, while Madonna is

said to have paid more than $500,000

for another. Other celebrity buyers of

the Bored Ape series are reported to in-

clude the Brazilian footballer Neymar,

the US hotel heiress Paris Hilton, and

the rapper Snoop Dogg.

Lawyers at Withers, the firm that

acted for the man seeking the injunc-

tion, say that the Singapore ruling was

unique as the court granted a freezing

order on an NFT in relation to a civil

law dispute.

The only other similar decision came

in the High Court in London last month

in a case known as OpenSea. In that

judgment, which is yet to be published,

the court ruled that NFTs were proper-

ty — but the injunction related to to-

kens that were criminally hacked by

anonymous thieves.

The Singapore court also allowed for

the court papers in the case to be served

via social media as well as on ethere-

um’s platform. The case involves a rare

NFT in the Bored Ape Yacht Club

There are about 10,000 images in the Bored Ape Yacht Club series of NFTs

Singapore court bans sale of collateral Bored Ape NFT

A generation ago, the Bored Ape Yacht
Club would have been little more than
a potential feature in Viz magazine, the
simian characters given Geordie inflec-
tions while boozing and smoking fags.
But in the age of non-fungible tokens
(NFTs) they are digital superstars
worth millions, with A-list celebrities
among their collectors.
And now a firm of London solicitors
has made legal history by blocking the
sale of a Bored Ape NFT, which is part
of a series of images that is popular with
stars. Singapore’s High Court last week
granted a worldwide injunction to a
man who had owned the NFT, which
he used as collateral for a loan.
The ruling freezes the sale and
ownership transfer by a “metaverse
personality” of the rare NFT that is
listed on the ethereum blockchain.
The NFT series features cartoon
images of apes — the Canadian singer
Justin Bieber is reported to have invest-

series, which consists of only about

10,000 images. Last month the “floor

price” — the minimum cost of an NFT

— for a Bored Ape image stood at

$434,000 (£346,000).

The claimant in Asia — who remains

anonymous — is an NFT investor who

owns several apes. He used one NFT —

registered as BAYC 2162 and the only

version of that image in the world — as

collateral to borrow ethereum, a cryp-

tocurrency. The move was designed to

allow the investor to unlock cash from

the NFT as ethereum can be used for

investment to earn interest.

The NFT used for collateral was also

rare because it is the only image of an

ape with a jovial expression and wear-

ing a beanie.

In court it emerged that the claimant

struck a loan deal with someone who

travels under the sobriquet of “chef-

pierre”, a public persona who posts on

Twitter, and who is believed to hold a

high position in the team at Gino’s Big

Town Chef, a Metaverse game.

But that deal fell apart and chefpierre

foreclosed and shifted the NFT to his

personal ethereum wallet, then listed

the image for sale. The court has now

blocked that sale in a decision that

Shaun Leong, a partner at Withers,

described as a “landmark ruling”.

Natasha Stourton, a partner at With-

ers’s headquarters in London, describes

NFTs as “a brand new area for the law

to grapple with and each case involving

one is setting new precedents and

establishing new industry practices”.

She advises that investors must take

care with any crypto asset and that they

“should be cautious about the terms on

which they seek to monetise their as-

sets, such as using them as collateral”.

Jonathan Ames

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