Recent legal news

Crime

Sentencing has come under the spotlight again. Earlier this month the Sentencing Council issued Comprehensive new guidance on imposing community and custodial sentences. According to the announcement, this sets out the guidance that magistrates and judges must follow when imposing community orders and custodial sentences, including deciding whether a custodial sentence can be suspended. It was developed through long public consultation and comes into effect on 1 April 2025.

The revised guideline places greater emphasis than before on the critical role of pre-sentence reports (PSRs) in sentencing decisions and provides more information on the function and scope of the requirements courts can attach to community orders and suspended sentence orders. The guideline was published alongside a consultation response document that sets out the views of respondents to the consultation and the changes that have been made a result of them.

You might think such a development uncontroversial but one aspect of it seems to have given rise to a political row. That is the suggestion that pre-sentence reports should be commissioned before determining whether to imprison anyone of an ethnic or religious minority, as well as young adults, abuse survivors and pregnant women. At present (as the Lammy Report made clear eight years ago), black and minority ethnic communities are overrepresented at almost all stages of the criminal justice process in England and Wales, and are more likely to be imprisoned and receive longer sentences than white people.

The new advice appears to be intended to address the risk of bias, but it has given rise to a perception of “two-tier justice” upon which politicians of both sides have pounced. In response to taunting by her opposition shadow, Robert Jenrick, the Lord Chancellor, Shabana Mahmood has ordered a review of the powers of the Sentencing Council. Its chair, William Davis LJ, has in turn penned a furious rebuttal, explaining the long and consultative process by which the new guidelines were arrived at, including being ignored at various stages by the government. “At no stage did the Lord Chancellor’s representative express any concern or reservation about the term now under debate,” he points out.

Guardian: Ministers criticise ‘two-tier’ sentencing changes in England and Wales

Joshua Rozenberg, A Lawyer Writes: Sentencing: what next?

Guardian: Mahmood to review Sentencing Council’s powers amid ‘two-tier’ justice row

See also Lammy Report (2017), at p 4: “More subtle scrutiny is needed of sentencing decisions, to ensure that many finely balanced judgements do not add up to disproportionate sentencing of BAME defendants over time.”

Private prosecutions

The government has announced Tough controls considered to regulate private prosecutors. It explains that

“Private prosecutions allow people to pursue justice where state prosecutors cannot, or choose not, to prosecute. However, the improper actions of some organisations have resulted in serious and often life-changing miscarriages of justice. Examples include the Post Office Horizon scandal, which saw failings in the prosecutorial practices leading to hundreds of innocent postmasters being wrongfully convicted.”

It also cites the example of people being unfairly prosecuted for “legitimate mistakes” such as unpaid bills and purchasing the wrong train ticket. It is calling for views on reforms which will enable better oversight and regulation of these prosecutors to prevent such failures in the future. This means there will be a public consultation. The government says the consultation will also look at how the Single Justice Procedure (SJP) can be improved to ensure all cases brought are in the public interest. It is clear that the current, largely automated, and not very transparent system has attracted a good deal of criticism and damaged public confidence in the justice system.

Public law

A research report conducted by Solomonic for law firm Burges Salmon has demonstrated that the number of judicial review claims brought by local authorities has risen steadily since 2021, but permissions have fallen. Local Government Lawyer highlighted the findings that litigation involving public bodies accounted for 12% of High Court litigation cases over the last decade, and that in 80% of those cases the public sector organisation was the defendant. Where the claimant was a public sector body, in most cases (63%), it was a local authority. In general, the report said:

“public sector High Court litigation has steadily fallen since 2014. This is due to a significant decrease in claims against central government. However, the research revealed an increase in claims brought by the public sector. This was largely driven by a rise in applications by local authorities in the last four years.”

The report itself is here: Navigating Public Sector High Court Litigation in England and Wales,

Law Tech

The Master of the Rolls, Sir Geoffrey Vos, gave an upbeat speech to this year’s LawTech UK Conference 2025, discussing among other things the work of the UK Jurisdiction Taskforce (UKJT). This has published three ground-breaking Legal Statements aimed at clarifying the law.

The aim was to remove private law legal impediments to the adoption of new technologies. The first was on the status of cryptoassets and smart contracts under English private law. That made clear that cryptoassets were property in English law and that smart contracts were capable of being legally binding contracts. The second was on the issuance and transfer of digital securities under English private law, which addressed the critical question of whether equity, debt or other securities could be validly issued and transferred under English law using blockchain systems. The third focused on digital assets and English insolvency law.

It now had three more projects up its sleeve. The first was to produce non-binding guidance on the legal concept of ‘control’ in relation to third category digital assets. The second current project concerns AI, and will produce a fourth legal statement on this topic,

“also with an eye to whether or not statutory intervention or underpinning is required. The focus will be on harms caused to third parties and whether the existing law of torts can adequately respond”.

The third and perhaps the most exciting project was the formation of an International Jurisdiction Taskforce or IJT.

“The idea would be to bring together some of best legal thinkers in the digital space from the main private law jurisdictions around the world, with a view to understanding how much common ground exists between their approaches to digital assets and digital trading.”

He concluded by remarking that “AI will transform the legal sector”. This may seem obvious to anyone engaged in development within the sector, but it is worth remembering that the same was said of computers in the 1970s and the Internet in the 1990s, and it was true. Yet people still scribble in notebooks and mark up hard copy bundles and carry physical texbooks festooned with post-it notes. Some things stay the same, -ish. But perhaps not on Sir Geoffrey’s watch. (I haven’t seen it. Is it a smart one?)

Probate

Still with law tech, not everyone is up to speed it seems. Legal Futures reported last week that HMCTS “did not have a mechanism to deliver comprehensive training” when the Probate Service was digitised. As a result, staff “did not fully understand” the changes, resulting in huge delays, according to justice minister Sarah Sackman KC, responding to a letter from the then chair of the Commons Justice Committee Sir Bob Neill MP last May. HMCTS would apply “lessons learned” to other court modernisation projects, she went on — testing and roll-out of new services was already “done differently”.

Data Protection

A standoff has occurred between the government and the technology company Apple over its encryption of private data uploaded to its iCloud storage service. Apple provides a level of encryption for users that even it can’t breach, but the government apparently want it to develop a “back door” to permit investigation of lawbreaking and terrorism by any Apple user, anywhere in the world. Although the government hasn’t announced what it is doing, it has generally been assumed that the UK Home Office has served Apple with a Technical Capability Notice (TCN).

Apple said no, and indicated that it would simply remove its Advanced Data Protection (ADP) feature service from UK customers. The company is also contesting the request before the Investigatory Powers Tribunal (IPT). There was a hearing last week at the High Court but it was held in secret, according to the BBC.

Apple is not the only one to complain. A number of privacy organisations are also challenging the government’s blanket approach to defeat encryption. They were also challenging the secrecy of the IPT hearing.

For a discussion of some of the legal implications, see Ioannis Kouvakas, UK Constitutional Law Association: You Can’t Have Your Apple and Eat It Too: Decryption Orders and the Perilous Future of U.K. Data Adequacy

See also:

Recent case summaries from ICLR

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

COMPETITION — Collective proceedings — Certification: Bulk Mail Claim Ltd v International Distribution Services plc (formerly Royal Mail plc), 12 Mar 2025 [2025] CAT 19; [2025] WLR(D) 149, CAT

CRIME — Practice — Trial: R v BAP, 14 Mar 2025 [2025] EWCA Crim 266; [2025] WLR(D) 155, CA

CRIME — Sentence — Nuisance: R v Hallam (Julian), 07 Mar 2025 [2025] EWCA Crim 199; [2025] WLR(D) 144, CA

EMPLOYMENT — Unfair dismissal — Reasonableness of dismissal: Hewston v Ofsted, 14 Mar 2025 [2025] EWCA Civ 250; [2025] WLR(D) 150, CA

INSOLVENCY — Adjustment of prior transactions — Transactions at undervalue or preferences: In re Ethos Solutions Ltd (Purkiss v Kennedy), 14 Mar 2025 [2025] EWCA Civ 268; [2025] WLR(D) 151, CA

INSOLVENCY — Administrator — Remuneration: Frost v The Good Box Co Labs Ltd, 12 Mar 2025 [2025] EWCA Civ 252; [2025] WLR(D) 146, CA

PLANNING — Development — Permitted development: Rex (Thomas) v Cheltenham Borough Council, 13 Mar 2025 [2025] EWCA Civ 259; [2025] WLR(D) 147, CA

PRISONS — Prisoners’ rights — Detention at Her Majesty’s pleasure: R (Quaye) v Secretary of State for Justice, 11 Mar 2025 [2025] EWCA Civ 226; [2025] WLR(D) 145, CA

RESTITUTION — Unjust enrichment — Ingredients of claim: H&P Advisory Ltd v Barrick Gold (Holdings) Ltd, 12 Mar 2025 [2025] EWHC 562 (Ch); [2025] WLR(D) 154, Ch D

REVENUE — Corporation tax — Capital allowances: Orsted West of Duddon Sands (UK) Ltd v Revenue and Customs Comrs, 17 Mar 2025 [2025] EWCA Civ 279; [2025] WLR(D) 152, CA

Recent case comments on ICLR

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

Panopticon: Does subject access have to be taxing? Ashley v Revenue and Customs Comrs [2025] EWHC 134 (KB); [2025] STC 342; [2025] WLR(D) 67, KBD

Nearly Legal: Didn’t bother trying to find her. She’s not there. Lumsden v Charles [2025] EWCC 7, County Ct

Mental Capacity Law and Policy: Anorexia, the Court of Protection and the changing calculus of decision-making: St George’s University Hospitals NHS Foundation Trust v LV [2025] EWCOP 9 (T3), Ct of Protection

QMLR: Fundamental dishonesty: recent lessons: Cullen v Henniker-Major [2024] EWHC 2809 (KB), KBD

Global Freedom of Expression: Yevstifeyev v. Russia: mixed outcome: Yevstifeyev v Russia (Application nos. 226/18, 236/18, 2027/18 and 22327/22) , ECtHR

Free Movement: Home Office to reconsider Windrush compensation rejection after court loss: R (Lee) v Secretary of State for the Home Department [2025] EWHC 519 (Admin), KBD

Free Movement: Court of Appeal dismisses appeal against refusal of spouse application: Butt v Secretary of State for the Home Department [2025] EWCA Civ 189, CA

Law & Religion UK: When executors disagree on funeral arrangements: Patel v Patel [2025] EWHC 560 (Ch), Ch D

Free Movement: Challenge to refusal of EEA residence card rejected for lack of dependency: Tipu v Secretary of State for the Home Department [2025] EWCA Civ 215, CA

Local Government Lawyer: National Farmers’ Union fails in legal challenge over lawfulness of policy in minerals and waste local plan: The National Farmers’ Union v Herefordshire Council [2025] EWHC 536 (Admin), KBD

UK-EU Relations Law: Coulda, shoulda, woulda — whether to depart from assimilated EU case law: Merck Serono SA v Comptroller-General of Patents, Designs, and Trade Marks [2025] EWCA Civ 45, CA

Local Government Lawyer: Court of Protection judge stresses “crucial significance” of issuing proceedings promptly in best interests case: NHS South East London Integrated Care Board v JP & Ors [2025] EWCOP 8 (T3), Ct of Protection

Law Society Gazette: Badly amiss’: Judge blasts £100k case wrongly issued in London: Boyd v Hughes [2025] EWHC 435 (KB), KBD

4–5 Gray’s Inn Square Chambers: Adjudication article: BDW Trading Ltd v Ardmore Construction Ltd [2024] EWHC 3235 (TCC); [2025] WLR(D) 11, KBD

Local Government Lawyer: Court of Appeal rejects appeal over permanent exclusion, warns undue focus on public sector equality duty may risk “over-legalising” decision-making process: R (TZA) v A Secondary School [2025] EWCA Civ 200; [2025] WLR(D) 128, CA

12KBW Personal Injury Law Blog: No assumption of responsibility after release from police custody: Dobson v Chief Constable of Leicestershire Police [2025] EWHC 272 (KB), KBD

Local Government Lawyer: High Court judge says children who crossed Channel in boat can be returned to France pending determination of their asylum claims: K (Children) (Application for return orders: Concurrent asylum claims), Re [2025] EWHC 450 (Fam), Fam D

And finally… Dates and deadlines

Play: Daisy through the looking-glass

Court 6, Royal Courts of Justice: 17 April 2025 from 5:00 PM to 7:30 PM

A new play written by His Honour Stephen Wildblood KC, charting the messy divorce of Dave and Maggie and its effect on their daughter, Daisy. When Dave and Maggie’s marriage falls apart, the couple have to navigate the family courts — and one of them is unrepresented. The play is hard-hitting: it covers themes of physical, sexual and emotional abuse, and also of suicide.

After the play, the actors will remain in their roles and will answer questions from the audience. — what is the truth about the allegations of domestic abuse? What do they think about the private law system? Then, there will be a discussion with the audience about the play and the issues that it raises.

Tickets, via Support through Court, cost £32.00 for standard admission.

Symposium: The Future of SLAPPs Research

London School of Economics (LSE) on 12 June 2025 (save the date)

The symposium will explore the current trends and challenges in scholarly research on the misuse of civil proceedings to silence public debate. Esteemed scholars, Professors Andrew Kenyon (University of Melbourne, Australia), Justin Borg-Barthet (University of Aberdeen), and Hilary Young (University of New Brunswick, Canada), will deliver keynote addresses on this theme.

The highlight of the symposium will be a roundtable discussion featuring leading experts in the field. The event will be held in the Box Conference Room, 5th Floor, Tower 3, Clements Inn, Strand, London. Further details and a comprehensive programme will be provided in due course. For more information on The SLAPPs Research Group, please visit: The Slapps Research Group.

That’s it for this week. Thanks for reading, and make sure you’re signed up for our email alerts. Don’t forget you can also 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.