Probation

The dismantling of public services in the name of austerity took few more disastrous turns than in the so-called “rehabilitation revolution” ushered in by one-time Lord Chancellor Chris Grayling in 2015, when he set about restructuring the probation service. We wrote about this at the time (see Weekly Notes, 06 February 2015):

“What Grayling has done is to split probation into two areas. The most serious offenders (about 30%) will continue to be dealt with by the (public sector) National Probation Service (NPS). The low and medium risk offenders (about 200,000 of them) will now be dealt with by private contractors or ‘community rehabilitation companies’ (CRCs). They will be paid by results. But the process of privatisation has given rise to problems, not least a lack of communication and clear understanding of who does what and how. Overwork in both the companies and the service has led to dangerous cases being missed, it is said.”

In 2016 the National Audit Office identified problems with “frictions between working level staff at the NPS and CRCs” and found that “staff in both organisations consider that high workloads have reduced the supervision and training that they receive and the service they provide”.

In 2017, the Ministry took action to ensure continuity of probation services in England and Wales by amending its contracts with CRCs from 2017–18 to improve their financial stability. A further investigation by the National Audit Office in December 2017 found that the Ministry of Justice had had to change the fixed-cost assumptions in their contracts with CRCs from 20% to 77%. Further reports by the House of Commons Justice Committee in 2018 (HC 482) and the Commons Public Accounts Committee in 2019 (HC 1747) also condemned the way Grayling’s reforms had turned out in practice. By then, of course, the musical chairs in the cabinet had been rearranged several times with successive conservative Lord Chancellors (roughly one new one each year) finding themselves stuck with the privatised probation shambles and doing their best to patch over the problems.

In 2021, the service was finally re-unified and re-nationalised. But as the current (Labour) Lord Chancellor, Shabana Mahmood MP pointed out in a speech last week, the service is still under strain:

“probation officers are spread too thin — responsible for caseloads and workloads that exceed what they should be expected to handle. … Over-stretched, they can’t work with offenders in the way they need to. And the burden placed on probation officers’ shoulders grow heavier and heavier.”

This is driving people away and making recruitment harder. So what is needed, she said, is more recruitment, to ease the workload; and better systems, less paperwork and more efficiency. A combination of AI to automate processes and what she called “the human factor” to optimise working relationships with offenders.

Interestingly the version Mahmood actually gave seems to have differed quite a lot from the one published by the government (with the mysterious rubric “Please note the political content has been removed from this speech”). According to Joshua Rozenberg, on A Lawyer Writes, Mahmood was much more personally critical of Grayling and the “lost decade” caused by his reforms: see his post, Grayling’s glittering career for the unexpurgated version.

There is also a government press release about Mahmood’s new proposals: Probation Service to cut crime by focusing on dangerous offenders

Crime

The Inquiry chaired by Lady Justice Thirlwall which is examining events at the Countess of Chester Hospital and their implications following the convictions of former neonatal nurse Lucy Letby for the murder and attempted murder of babies at the hospital, has now completed its main evidential hearings, though some additional evidence is expected, including an oral hearing on 24 February. Thirlwall LJ gave her closing statement on 17 January 2025. The next phase of the Inquiry is the preparation and submission by the Core Participants of their written closing submissions, supplemented with oral submissions next month.

But the assumption on which the inquiry has been conducted is that Letby’s convictions are safe. That has been doubted and disputed by a number of medical and other commentators.

Earlier this month a panel of medical experts chaired by Dr Shoo K Lee, a Canadian neonatal care expert, told a press conference that Letby had not murdered any babies and that “in all cases death or injury were due to natural causes or just bad medical care”. Dr Lee said the 14 experts in his group, including medical professionals from Canada, the US, Japan, Germany, Sweden and the UK, had looked at 17 cases at the heart of Letby’s prosecution and had compiled an “impartial evidence-based report”.

The report is likely to form part of an application which has been made by Letby’s lawyers to the Criminal Cases Review Commission (CCRC) for her case to be investigated as a potential miscarriage of justice. The Court of Appeal has twice refused her permission to appeal against her convictions but a bid by the CCRC may prove third time lucky. The CCRC is expected to review the medical panel’s full report in the coming weeks. Announcing its review of the case, a CCRC spokesperson said:

“We are aware that there has been a great deal of speculation and commentary surrounding Lucy Letby’s case, much of it from parties with only a partial view of the evidence. We ask that everyone remembers the families affected by events at the Countess of Chester Hospital between June 2015 and June 2016. …

“It is not for the CCRC to determine innocence or guilt in a case, that’s a matter for the courts. It is for the CCRC to find, investigate and, if appropriate, refer potential miscarriages of justice to the appellate courts when new evidence or new argument means there is a real possibility that a conviction will not be upheld, or a sentence reduced.”

BBC: Letby did not murder babies, medical experts claim

Independent: Lucy Letby’s lawyers urge review of case after medical experts claim babies were not murdered

Guardian: No medical evidence to support Lucy Letby’s conviction, expert panel says

Mediation

As an alternative to litigation, parties have traditionally turned to arbitration; but if what is in effect a form of private, international, litigation takes too long, the other alternative is mediation. Court rules, following the decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416; [2024] 1 WLR 3827, now cater for and encourage alternative dispute resolution of one sort or another, requiring it to be attempted first as a condition of continuing a case in the courts.

In a recent speech to the British Institute of International and Comparative Law, the Lady Chief Justice Baroness Carr sought to explain and promote the idea of enforceable mediation as an effective means to resolve international commercial disputes, following the Singapore Convention on Mediation (2019).

For more on this, see Joshua Rozenberg, A Lawyer Writes, Cutting through the knotweed: How encouraging mediation can support both litigation and arbitration

Legal Futures: Carr floats formal mediation council for civil and commercial work

Judicial review

On 23 January, Sir Keir Starmer announced plans to ‘stop blockers getting in the way’ of infrastructure development, by introducing restrictions on judicial review of infrastructure projects. Though they may sound alarming, the proposals largely reflect the Independent review into legal challenges against Nationally Significant Infrastructure Projects (NSIP) led by Lord Banner KC (‘the Banner Review’), which was commissioned by the previous Conservative government, and they follow on from the Ministry of Justice’s call for evidence on implementing some of Lord Banner’s proposals, which ran from 28 October 2024 to 30 December 2024. For more on this, see Sam Guy: The Government’s Plan to Reform Infrastructure Judicial Review on the UK Constitutional Law Association blog.

Attacks on judicial review by the government (ie the executive, whose actions and decisions are generally the subject of uncomfortable scrutiny in the process) have been commonplace over the last twenty years at least, but it’s important to stress that the current proposals are limited to big project planning decisions, which occupy a niche area in the overal scheme of judicial review. They will not affect the popular understanding of judicial review as a mechanism by activist lawyers to frustrate the deportation of illegal immigrants on spurious human rights grounds, etc, etc. Moreover, the changes that do apply (to major infrastructure projects) do not restrict access to justice so much as streamline the process by eliminating time-wasting procedural steps and reducing what the Banner review called the ‘multiple bites of the cherry’.

Accordingly, if we have understood the proposals correctly, they are not as sinister as might have been contended. Indeed, as Mark Elliott points out on another blog, Judicial review reform: the importance of grown-up debate, via Public Law for Everyone,

“In constitutional terms, it is difficult to contend that there is anything dubious about what is envisaged. The Banner Review was correct when it argued that there is ‘no established constitutional right to multiple bites of the cherry at the permission stage’ — a view that is consistent, for example, with the view taken by the Supreme Court in R (Cart) v Upper Tribunal [2011] UKSC 28. The restriction, or streamlining, of the judicial-review process that is proposed is thus very different, in both practical and constitutional terms, from much blunter instruments such as the use of ouster clauses, which seek to rule out judicial review rather than to regulate the process by which it can be accessed.”

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4

DISCRIMINATION — Religion or belief — Manifestation: Higgs v Farmor’s School, 12 Feb 2025 [2025] EWCA Civ 109; [2025] WLR(D) 87, CA

EXTRADITION — Extradition offence — Insider dealing: El-Khouri v Government of the United States of America, 12 Feb 2025 [2025] UKSC 3; [2025] WLR(D) 88, SC(E)

INJUNCTION — Anti-suit injunction — Restraint of foreign proceedings: UniCredit Bank GmbH v RusChemAlliance LLC (G v R), 11 Feb 2025 [2025] EWCA Civ 99; [2025] WLR(D) 86, CA

LOCAL GOVERNMENT — Homeless persons — Refusal of offer of accommodation: R (Bano) v Waltham Forest London Borough Council, 07 Feb 2025 [2025] EWCA Civ 92; [2025] WLR(D) 93, CA

MENTAL CAPACITY — Capacity to make decisions — Assessment of capacity: CT v Lambeth London Borough Council, 12 Feb 2025 [2025] EWCOP 6 (T3); [2025] WLR(D) 96, Ct of Protection

NATIONALITY — British citizenship — Application: R (APD) v Secretary of State for the Home Department, 07 Feb 2025 [2025] EWHC 246 (Admin); [2025] WLR(D) 84, KBD

POLICE — Discipline — Misconduct: R (Di Maria) v Comr of Police of the Metropolis, 11 Feb 2025 [2025] EWHC 275 (Admin); [2025] WLR(D) 100, KBD

PUBLIC PROCUREMENT — Contract award procedure — Disqualification: Working on Wellbeing Ltd (trading as Optima Health) v Secretary of State for Work and Pensions, 14 Feb 2025 [2025] EWCA Civ 127; [2025] WLR(D) 97, CA

REVENUE — Value added tax — Concession: R (Angela Ruskin Students’ Union) v Revenue and Customs Commissioners, 12 Feb 2025 [2025] EWHC 296 (Admin); [2025] WLR(D) 95, KBD

SEXUAL OFFENCE — Voyeurism — Upskirting: R v Barone (Paolo), 14 Feb 2025 [2025] EWCA Crim 125; [2025] WLR(D) 98, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

Law & Religion UK: Conduct, dismissal from employment and Articles 9 & 10 ECHR: Higgs v Farmor’s School again: Higgs v Farmor’s School [2025] EWCA Civ 109, CA

Kingsley Napley: Fifteen years on — The impact of Radmacher on UK prenups and divorces: Granatino v Radmacher (formerly Granatino) [2010] UKSC 42; [2011] 1 AC 534; [2010] 3 WLR 1367; [2011] 1 All ER 373; [2010] 2 FLR 1900; [2010] WLR (D) 260; Case details, SC(E)

Mental Capacity Law and Policy: Deprivation of liberty and profound disability — an urgent need for appellate clarification: Rochdale Borough Council v Mother [2025] EWHC 200 (Fam), Fam D

Law Society Gazette: Legal centre and barrister cleared of negligence after five-year fight: Christie v Mary Ward Legal Centre [2025] EWHC 330 (KB), KBD

Transparency Project: Judgment published to warn women against sperm donor who has “180 kids”: A v B [2023] EWFC 333, Fam Ct

ICLR blog: Putting right a ‘dystopian’ procedure: Potanin v Potanina [2024] UKSC 3; [2024] AC 1063; [2024] 2 WLR 540; [2024] 2 All ER 773; [2024] 1 FLR 1040, SC(E)

Nearly Legal: Bits of interest: Lewis v Francis [2025] EWHC 17 (Admin), KBD; R (MV) v Lewisham London Borough Council [2025] EWHC 280 (Admin), KBD

Free Movement: Court of Appeal returns deprivation appeal to the Upper Tribunal: Secretary of State for the Home Department v Daci [2025] EWCA Civ 18, CA

Free Movement: High Court upholds award of £98,757 damages to refugee: Secretary of State for the Home Department v Almas [2025] EWHC 212 (KB), KBD

QMLR: The limits of discretion in case management decisions: Prescott-Brann v Chelsea and Westminster Hospital NHS Foundation Trust [2024] EWHC 3314 (KB), KBD

Out-Law: UK court shuts door on ‘second medical use’ SPCs: Merck Serono SA v Comptroller-General of Patents, Designs, and Trade Marks [2025] EWCA Civ 45, CA

Mental Capacity Law and Policy: Autonomy and assisted dying / suicide — an important judicial light shed from an unexpected corner: RTM v Bonne Terre Ltd [2025] EWHC 111 (KB), KBD

Pensions Barrister: High Court approves merger of schemes in winding-up: Arcadia Group Pension Trust Limited v Joanne Teresa Smith [2025] EWHC 11 (Ch), Ch D

And finally…

Opportunity knocks — for new lawyers

Applications are now open for the High Court Judicial Assistant Scheme 2025/2026.

Aimed particularly at recently qualified barristers and solicitors in the early stages of their legal career, the role of Judicial Assistant (JA) involves carrying out legal research, summarising documents and providing general support for judges in all three divisions of the High Court. Up to 13 full-time appointments will be made lasting either two or four legal terms during the 2025–2026 legal year. The work will be based in London, where JAs will be expected to work in either the Rolls Building or the Royal Courts of Justice.

Applications should be made by 6pm on Friday 21 March 2025. Interviews will be held between 30 April and 9 May 2025. Further details via the Judiciary website.

That’s it for this week. Thanks for reading, and make sure you’re signed up for our email alerts. And you can now find ICLR on BlueSky.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

Featured image: Taking pride in probation (Shutterstock)