Weekly Notes: legal news from ICLR, 21 October 2024
This week’s roundup of legal news includes sentencing, assisted dying, and international law. Plus recent case law, speeches and commentary.… Continue reading
Recent legal news
Sentencing
The government has announced a major review of sentencing, to be chaired by former Lord Chancellor David Gauke. (We’ve had quite a roster of Lord Chancellors over the last decade or so, some worse than others, but he was definitely one of the good ones.) The review will consider how best to protect the public, punish the wrongdoer, but somehow not clutter up the overcrowded prison estate with people who might be better rehabilitated elsewhere. The prison population has doubled over the last three decades, and the government has obviously realised that it can’t just go on building new prisons or doubling the capacity of old ones, especially if the companies that do the work collapse. The review will also specifically consider whether current sentencing for crimes committed against women and girls fits the severity of the act, and ask whether there is more can be done to tackle prolific offending. In developing their recommendations, the independent chair and panel will look at evidence in this country and also from overseas jurisdictions, such as the US, to explore alternative approaches to criminal justice.
Terms of Reference: Independent Sentencing Review 2024 to 2025
Joshua Rozenberg (A Lawyer Writes) Gauke holds the key
The Times: House arrest to replace prison for low-level offenders
Guardian: Fewer women may go to jail in England and Wales in sentencing review
Financial Times: Collapse of construction group ISG halts urgent work on UK prisons
However, the review will not consider Imprisonment for Public Protection (IPP) or the administration of it, which has been the subject of much criticism and an earlier review. Such sentences are no longer imposed (having been abolished as long ago as 2012) but many prisoners are still subject to the regime. The Parole Board is currently updating information on IPP licence terminations to reflect the relevant provisions within the Victims and Prisoners Act 2024 that will come into force shortly.
Parole Board: Update on imminent changes to IPP licence termination process
Prison Reform Trust: Peers to debate reforms to address the “stain” of the IPP sentence
Independent: Former top judge demands help for prisoners ‘left to rot’ under ‘morally wrong’ indefinite jail terms
Finally, it is not clear how giving magistrates greater sentencing powers will resolve the prison crisis, except perhaps that they may be less likely to refer matters to the Crown Court for sentencing, resulting in an overall reduction in the total prison days to which criminals generally are sentenced. The move appears to be more directed towards the speed of disposal of cases, given the current backlog. The Lord Chancellor Shabana Mahmood has confirmed plans to allow magistrates to issue custodial sentences for up to 12 months for a single offence — a doubling of their current powers.
Ministry of Justice: Increased sentencing powers for magistrates to address prisons crisis
Assisted dying
Bills proposing the decriminalisation of certain actions designed to assist a terminally ill person to end their life come round from time to time, and currently there are two of them. One, begun in the House of Lords, by former Labour Lord Chancellor Charles Falconer, is called the Assisted Dying for Terminally Ill Adults Bill. The other, which has been in the news recently, is a private member’s Bill proposed by the Labour backbench MP Kim Leadbetter, is called the Terminally Ill Adults (End of Life) Bill. Both Bills are awaiting a second reading. MPs will hold their first debate on the Leadbeater’s Bill on 29 November. They will be given a free vote, meaning they can vote according to individual conscience. Falconer’s Bill in the Lords has yet to be given a date for its second reading, but the thinking is that its presence will lend support to Leadbetter’s if and when it reaches the upper chamber.
House of Commons Library research briefing: The law on assisted suicide
Law and Lawyers: Assisted Dying Bills ~ Background information (plus some useful links)
The Conversation: Assisted dying bill enters parliament — how likely is it to become law?
Guardian: England and Wales assisted dying bill formally launched in House of Commons
Independent: Assisted dying: What is the current law and will it change?
The Archbishop of Canterbury warns against legalising assisted suicide
International law
While the Chagos islanders, or Chagossians, exiled from their homeland half a century ago, have been the subject of both recent and historic case law, the islands themselves, also known as the British Indian Ocean Territory (BIOT), have now been parcelled up and bundled about in much the same manner. Formally speaking, their sovereignty (a very charged word, that) has been transferred from the UK to Mauritius, a bit like the islanders themselves, who were compulsorily resettled there or in the Seychelles.
In Chagos Islanders v Attorney General [2004] EWCA Civ 997 the Court of Appeal (at para 6) described the Chagossian’s treatment at the hands of the UK as having been “shameful”:
“the uprooting of scores of families from the only way of life and means of subsistence that they knew; the want of anything like adequate provision for their resettlement: all of this and more is now part of the historical record …. the pauperisation and expulsion of the weak in the interests of the powerful still gives little to be proud of”.
Moreover, their expulsion was held in the earlier case of R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2000] EWHC 413 (Admin); [2001] QB 1067 to have been ultra vires and therefore unlawful. The government did not appeal that decision, it seems, but relied instead on the trump card of national (or international) security. Compensation was paid, albeit wholly inadequate, thus precluding further claims. Subsequent rounds of litigation have also failed: see R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010; [2021] 1 WLR 472.
And now the islands themselves have been resettled. The governments of the UK and Mauritius made a joint statement on 3 October 2024 concerning the Chagos Archipelago, including Diego Garcia. David Lammy MP, as Foreign Secretary, later made a statement to Parliament explaining it on 7 October. Though yet to be ratified, the deal may be thought to conclude a long running dispute over the islands, whose key value (ignoring the claims of those Chogossians who once lived there) has for a long time been its strategic importance (most assertively to the USA) as a military base (situated on one of the islands, Diego Garcia).
But why now? According to David Allen Green, “The explanation which best fitted the available evidence was that the United States and Mauritius did a deal and then told the United Kingdom that it had to be announced.” He goes on to explain that the transfer of sovereignty was in any case long due, if not overdue, as part of the UK’s decolonisation obligations, and identified as such in an advisory opinion of the International Court of Justice in 2019. That the announcement was sneaked out during a parliamentary recess only underlines the post-imperial shabbiness of the situation.
David Allen Green (Law and Policy Blog) What explains the timing and manner of the Chagos Islands sovereignty deal?
BBC: UK will give sovereignty of Chagos Islands to Mauritius
Guardian: Lammy defends Chagos deal, saying it saves important UK-US military base
Recent speeches
Prof David Hodson KC (Hon): AI and Family Law (Breakfast meeting, Support through Courts, 8 October 2024)
Sir Geoffrey Vos MR: The Digital Trading Revolution — Underpinned by Law (Legal Geek Conference, 16 October 2024)
Cobb J: ‘Justice must be seen to be done’ (marking One Hundred Years since R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, one of the classic cases on open justice).
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4
ARBITRATION — Seat of arbitration — Applicable law: Investcom Global Ltd v PLC Investments Ltd, 03 Oct 2024 [2024] EWHC 2505 (Comm); [2024] WLR(D) 435, KBD
CHILDREN — Custody rights — Breach: AB v CD, 03 Oct 2024 [2024] EWHC 2521 (Fam); [2024] WLR(D) 432, Fam D
CONSUMER PROTECTION — Contract — Unfair terms: Glaser v Atay, 03 Oct 2024 [2024] EWCA Civ 1111; [2024] WLR(D) 427, CA
DENTIST — Discipline — Suspension: Professional Standards Authority for Health and Social Care v General Dental Council (Danial v General Dental Council), 16 Oct 2024 [2024] EWHC 2610 (Admin); [2024] WLR(D) 441, KBD
IMMIGRATION — Removal — Public security: George v Secretary of State for the Home Department, 14 Oct 2024 [2024] EWCA Civ 1192; [2024] WLR(D) 437, CA
INTERNATIONAL LAW — State immunity — Act of state: Shehabi v Kingdom of Bahrain, 04 Oct 2024 [2024] EWCA Civ 1158; [2024] WLR(D) 425, CA
PLANNING — Statutory review — Time limit: Farnham Town Council v Secretary of State for Levelling Up, Housing and Communities, 03 Oct 2024 [2024] EWHC 2458 (Admin); [2024] WLR(D) 444, KBD
PRACTICE — Case management — Financial remedies proceedings: GH v GH, 03 Oct 2024 [2024] EWHC 2547 (Fam); [2024] WLR(D) 422, Fam D
PUBLIC HEALTH — Statutory nuisance — Causation: Ferko v Ealing Magistrates’ Court, 14 Oct 2024 [2024] EWHC 2592 (Admin); [2024] WLR(D) 439, KBD
PUBLIC POLICY — Administration of estates — Suicide: Morris v Morris, 09 Oct 2024 [2024] EWHC 2554 (Ch); [2024] WLR(D) 438, Ch D
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Free Movement: Upper Tribunal provides guidance on the deportation of EU nationals for post-Brexit conduct: Vargova (Katarina) v Secretary of State for the Home Dept, 26 Sep 2024, UT
Financial Remedies Journal: Till Debt Do Us Part: Bankruptcy and Financial Remedies: Gudmundsson v Lin [2024] EWHC 1576 (Fam), Fam D
UK Human Rights Blog: Nursing home held not to be a public authority for the purposes of an Article 2 claim: Sammut v Next Steps Mental Healthcare Ltd [2024] EWHC 2265 (KB), KBD
A Lawyer Writes: Barristers lose £2.75m: Pump Court Chambers also lose the right to keep alleged fraud secret: Pump Court Chambers Ltd v Brown [2024] EWHC 2428 (Ch), Ch D
Law Society Gazette: Adverse possession — the time to believe? Brown v Ridley [2024] UKUT 14 (LC), UT
Free Movement: Upper Tribunal gives guidance on when non-Afghan nationals can be granted indefinite leave to remain under Afghan resettlement scheme: R (Bam Bahadur Gurung) v Secretary of State for the Home Department Judgment PDF, UT (IAC)
Local Government Lawyer: Council resists claim of indirect sex discrimination in homelessness judicial review: R (Begum) v Tower Hamlets London Borough Council [2024] EWHC 2279 (Admin); [2024] WLR(D) 394, KBD
Nearly Legal: Homelessness, disability and reasonable preference under allocation schemes: R (RR) v Enfield London Borough Council [2024] EWHC 2501 (Admin), KBD
Public Law for Everyone: Judicial review 101: McAleenon in the Supreme Court: In re an application by Noeleen McAleenon for Judicial Review [2024] UKSC 31, SC(NI)
5RB: Judgment in FT application for non-party access to documents: Secretary of State for Business and Trade v Greensill [2024] EWHC 1803 (Ch), Ch D
Legal Futures: Court orders parties to engage in ADR over costs: Elphicke v Times Media Ltd [2024] EWHC 2595 (KB), KBD
36 Group: Clarity on the Merits Threshold for Freezing Injunctions: the Court of Appeal in Unitel SA v Dos Santos [2024] EWCA Civ 1109; [2024] WLR(D) 433, CA
33 Bedford Row: The High Court in “XING ZHI HAI” assesses the undisclosed principal doctrine in the context of letters of indemnity: Yangtze Navigation (Asia) Co Ltd v TPT Shipping Ltd [2024] EWHC 2371 (Comm), KBD
Nearly Legal: The meaning of unfitness: Jillians v Red Kite Community Housing, 24 Sep 2024 Judgment PDF, County Ct
Law & Religion UK: Limits on anonymity: In re St Margaret’s, Ormesby [2024] ECC Nor 5, Const Ct
Inforrm’s blog: Permission to serve out set aside, forum and merits tests failed, “single publication rule” applied: Parish v Wikimedia Foundation, Inc.[2024] EWHC 2301 (KB), KBD
Local Government Lawyer: Parents fail in High Court challenge to permanent exclusion of child from school: R (LM) v An Academy Trust [2024] EWHC 2267 (Admin), KBD
AND FINALLY
Greek man convicted of causing disturbance by entering neighbors’ properties to smell their shoes
Earlier this month, Associated Press reports, a judge in northern Greece imposed a suspended one-month prison sentence on a man convicted of disturbing his neighbors by repeatedly sneaking into their properties to smell their shoes. He was also “ordered to attend therapy sessions”. Police were called after a neighbour found the defendant in his front yard sniffing his family’s shoes, which had been left outdoors to air. The man was arrested before dawn on 8 October 2024 in the small town of Sindos, about 15 kilometers (9 miles) west of Thessaloniki.
Well, at least he has been brought to heel for this shoddy behaviour.
That’s it for now! Thanks for reading, and make sure you’re signed up for our email alerts.
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.