Recent legal news

Crime: murder review

Domestic killers face tougher sentences, according to the government, in its latest move to ‘halve violence against women and girls’. Two new statutory aggravating factors for murder sentencing announced last week will mean judges will have to consider tougher jail terms for murders involving strangulation or when the killing is connected to the end of a relationship.

The move will implement two outstanding recommendations from Clare Wade KC’s independent Domestic Homicide Sentencing Review, which was published last year. The current murder sentencing framework in England and Wales was introduced in 2003 and has not been fundamentally reviewed since. This has led to piecemeal changes implemented over the subsequent two decades which have created inconsistencies in the sentencing framework. This has resulted in domestic murders committed in the home with a weapon often receiving a lower sentence than those committed with a weapon such as a knife in public places.

In recognition of wider concerns about inconsistencies in murder sentencing and homicide law, the government has asked the Law Commission to take on a project reviewing the law on homicide and the sentencing framework for murder. This was last done almost 20 years ago, and recommendations made at the time were not implemented. In its 2006 report the Law Commission described the law governing homicide as a “rickety structure set upon shaky foundations. Some of its rules have remained unaltered since the seventeenth century, even though it has long been acknowledged that they are in dire need of reform”.

As society and the law has moved on, new problems and possible limitations with the existing law have emerged. These include the operation of the law of joint enterprise, how diminished responsibility should be reflected in any new classification of homicide offences, and the extent to which the law reflects a modern understanding of the effects of domestic abuse.

Courts

But can the criminal justice system cope? According to a recent report by Sky News, “the criminal court system is on its knees, which means people are waiting years for justice”. Reporters spent two days at Leicester Crown Court with Mary Prior KC, chair of the Criminal Bar Association, who told them the system is “broken, because it is not effective, it is not functioning in the way it used to function”. Police are charging more but shortages of prison staff, judges and barristers, prison vans running late etc, mean the system cannot cope. “People are getting away with crimes.” Victims are retraumatised or lose the confidence to continue engaging with the system, according to Victims’ Commissioner, Baroness Newlove.

Sky News: ‘Justice delayed is justice denied’: Sky News examines UK’s broken legal system

This reinforces what the Lady Chief Justice was saying to the Justice Committee, about the system ‘fire brigading instead of town planning’, as we reported in last week’s roundup (see Weekly Notes, 2 December 2024).

Prisons

Despite all this, or perhaps because of it, the government’s latest prison population projections 2024 to 2029, England and Wales suggest that

“The prison population is projected to increase to between 95,700 and 105,200 by March 2029, with a central estimate of 100,800. The projected increase in the prison population is driven by several factors including: continued growth in police charging and prosecutorial activity; increased flows into the courts; rising levels of people on remand; and changes in sentencing policy and behaviour to keep the most serious offenders in prison for longer.”

The good news is that the increase is apparently less than it would have been under the last projected figures, in the 2023–2028 publication. Nevertheless, the projections are alarming and underline the need for both a review of sentencing and an expansion of the prison estate.

As to the latter, the National Audit Office last week published its report into Increasing the capacity of the prison estate to meet demand. The report examines

• MoJ’s and HMPPS’s progress in expanding and maintaining the prison estate
• MoJ’s and HMPPS’s oversight and management of recent capacity pressures and the impact of measures it has used to alleviate pressures
• future risks to the resilience of the prison estate

When the NAO last reported on the prison estate in 2020 it found that HM Prison and Probation Service (HMPPS) — the executive agency of the Ministry of Justice (MoJ) responsible for managing the prison service in England and Wales — was “failing to meet its aims of providing a safe, secure and decent prison estate”. Since then, MoJ has increased the scale of its prison expansion plans from 13,400 to 20,000 additional places by the mid-2020s in response to projected increases in demand. HMPPS has delivered 6,518 additional places between 2020 and September 2024, 278 of which are from additional crowding at four private prisons. Despite this, the prison estate has been operating at close to full capacity since autumn 2022, with many prisons severely crowded. If prisons reach full capacity, it points out, “there would be significant impacts on the wider criminal justice system”.

Long queue for justice in the Post Office

Among those eventually queueing for a place in prison might be some of the crooks in the Post Office and/or Fujitsu — not before time, but perhaps not for quite a long time.

The final phase of evidence gathering in the Post Office Horizon IT inquiry has now finished, and Closing Statements are expected to take place next week, but it looks as though the police investigation will not lead to any prosecutions reaching trial before 2027, and possibly not before 2028. Commander Stephen Clayman, the head of specialist crime at the Metropolitan Police who is overseeing the investigation, told post­masters that officers were investigating potential cases of perjury and perverting the course of justice, but had to wait for the final report to be published before they can propose or the CPS make any final charging decision.

The Times: Horizon IT prosecutions won’t go to trial until 2027

Police

It’s not clear whether policing levels are going up or down. The government claims to be putting More bobbies on the beat as PM puts people’s priorities first, but according to the Sunday Times, “Police officer numbers will need to be cut and council tax raised to prevent funding shortfalls, police chiefs have warned”.

Under what the government describes as its Neighbourhood Policing Guarantee,

“every neighbourhood will have a named, contactable officer, and residents and businesses will be given a voice to shape their local police priorities. In addition, every force will have a dedicated anti-social behaviour lead who will work with their communities to develop action plans that tackle the concerns seen on their streets every day.”

This will be achieved by providing 13,000 additional neighbourhood policing officers, PCSOs and special constables in dedicated neighbourhood policing roles, and extra funding of £100 million. But that target is described as a “milestone over this parliament” — ie over the next four and a half years. In the meantime, the current funding will not be sufficient, according to the police chiefs. “Overall police numbers could be cut by thousands”, according to the Sunday Times report.

“Police chiefs said the upcoming cuts they will be forced to make were ‘completely at odds’ with Sir Keir Starmer’s announcement last week to recruit an additional 13,000 neighbourhood police officers as part of his wider government’s plan for change.”

Sunday Times: Police chiefs warn of cuts to officer numbers to meet funding shortfall

Stalking

Stalking victims are to be given more protection and perpetrators will face robust management under a raft of new measures announced by the Home Office last week. For the first time, the Home Secretary will issue new ‘Right to Know’ statutory guidance to empower the police to release the identity of an online stalker at the earliest opportunity. This will set out the process for disclosure more clearly to the police and provide victims who with greater reassurance that they will be quickly told the identity of the individual threatening them online.

“The guidance was inspired by the experience of broadcaster and activist Nicola Thorp … [who] has been working with the government to give victims the right to know who their online stalkers are after police said they could not reveal the identity of the offender even after he was arrested, despite the perpetrator once saying he had got so close to Nicola on a train, he “could smell” her. The man, who called himself The Grim Reaper in some of his messages to Nicola, is currently serving a 30-month prison sentence with a lifetime restraining order handed down after his appearance in court — the first time Nicola learned his true identity.”

In addition to other measures, Stalking Protection Orders will be more widely available, to ban stalkers from going within a certain distance of their victims or contacting them, or to compel them to attend a perpetrator programme to address the root causes of their behaviour. Currently, such orders can only be made by the courts if the police apply for them, but in future courts will have the power to impose Stalking Protection Orders directly at conviction — or even on acquittal, if there is enough evidence to suggest that they are still a risk to the victim.

Judiciary: speeches

The View from the Bench — a speech by Mr Justice Fordham to the Hart Judicial Review Conference, given on Friday 6 December 2024. Much of the speech is in effect a review of the latest Judicial Review Guide published by the Administrative Court. Discussing the need to consider an instrument such a statute as a whole, and not simply by reference to one or two cited provisions, Fordham J suggests by way of comparison “After all, we do not extract pages and headnotes from law reports”. No, of course not. You read the whole report, for internal context, when considering extracted bits. As to citing cases, and their relevance to the point, he has this advice:

“Everyone knows that public law cases are intensely context-specific and fact-specific. So, advocates should be ready to answer the question: what proposition of law does this case demonstrate? Certainly, legal teams should be clear about why a case is being cited. The point I want to emphasise is that some Judges are persuaded that relevance to an argument, necessity for its proper presentation, and necessity for the fair disposal of the issues can extend beyond whether a cited case ‘demonstrates a proposition of law’.”

But this can include citation for the purposes of illustrating how a principle is applied in practice.

The Impact and Value of AI for IP and the Courts — a speech by Lord Justice Birss, Deputy Head of Civil Justice, delivered at the Life Sciences Patent Network European Conference in London on 3 December 2024. Birss LJ notes that one of the tasks AI is well suited to is summarising long texts. We do this with unreported judgments at ICLR. He recommends doing it for court papers, to give the judge a one-page overview of what a case is about to help them prepare for the hearing. At the moment, this task is performed by judicial assistants, for those senior judges lucky enough to have them; but it could be rolled out for all judges if AI were harnessed to this end. Birss LJ goes on to discuss Technology Assisted Review (TAR) and other techniques using AI that could assist in the justice process. Indeed, looking further into the not-too-distant future, he suggests:

“one could imagine that AI may very well be able to assimilate much larger quantities of data than a normal human judge. One could then be faced with the situation in which an AI system might be a better decision maker than a human being in those circumstances … The question will then become an important ethical and human rights based one — in which we need to decide whether there are decisions we are prepared to have made by AI, and which decisions should remain the preserve of human beings.”

In the meantime, he warns lawyers to be careful: not to share private confidential or sensitive data with public LLMs, and to take responsibility for any material supplied to the court using AI: “A lawyer producing a document to court which contains hallucinated case citations only has themselves to blame.”

Transparency

The Transparency and Open Justice Board, chaired by Nicklin J, has published its proposed Key Objectives. These have been framed with the help of the board’s Stakeholder Committee, which is largely made up of court observers and researchers, members of the public and interested parties, including a representative from ICLR. The key objectives deal with open courts, open reporting, open decisions and open documents — none of which is absolute but all of which should inform the way courts and tribunals conduct their business, and if necessary must adapt to conform with those objectives. The objectives are explained more fully in accompanying notes, which also explain how to respond. See: Key Objectives Engagement: Explanatory Notes

Recent case summaries from ICLR

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

CONTRACT — Formation — Variation: Cobalt Data Centre 2 LLP v Revenue and Customs Comrs, 20 Nov 2024 [2024] UKSC 40; [2024] 1 WLR 5213, SC(E)

HOUSING — Private rented sector — Licensing of houses: R (Clearsprings Ready Homes Ltd) v Swindon Magistrates’ Court, 26 Nov 2024 [2024] EWHC 2023 (Admin); [2024] WLR(D) 527, KBD

INSOLVENCY — Administrator — Appointment: In re KRF Services (UK) Ltd, 26 Nov 2024 [2024] EWHC 2978 (Ch); [2024] WLR(D) 531, Ch D

INSOLVENCY — Winding up — Petition: In re A Company (No CR-2024-BHM-000012), 25 Nov 2024 [2024] EWCA Civ 1436; [2024] WLR(D) 530, CA

MENTAL HEALTH — Capacity — Engagement in sexual relations: In re ZX (Capacity to Engage in Sexual Relations), 03 Dec 2024 [2024] EWCA Civ 1462; [2024] WLR(D) 528, CA

PRACTICE — Claim form — Extension of time for service: Bangs v FM Conway Ltd, 28 Nov 2024 [2024] EWCA Civ 1461; [2024] WLR(D) 521, CA

REVENUE — Corporation tax — Advance corporation tax: Axa Sun Life plc and others v Inland Revenue Comrs, 27 Nov 2024 [2024] EWCA Civ 1430; [2024] WLR(D) 525, CA

ROAD TRAFFIC — Negligence — Causation: Ali v HSF Logistics Polska sp z oo, 04 Dec 2024 [2024] EWCA Civ 1479; [2024] WLR(D) 532, CA

Recent case comments on ICLR

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

12 KBW: No wasted costs after fundamental dishonesty: Williams-Henry v Associated British Ports Holdings Ltd (Wasted Costs Order Judgment) [2024] EWHC 2415 (KB), KBD

7BR: Are anonymity orders involving protected parties in peril? PMC v A Local Health Board [2024] EWHC 2969 (KB), KBD

4 New Square chambers: High Court rejects the existence of a shareholder’s right to inspect privileged company documents: Aabar Holdings SarL v Glencore plc [2024] EWHC 3046 (Comm); [2024] WLR(D) 523, KBD

Law & Religion UK: The Star of David on Church of England gravestones?Re St Mary the Virgin Weston Turville [2024] ECC Oxf 8, Const Ct

UK Human Rights Blog: Have you renewed your MOT? RTA claims and “ex turpi causa” Ali v HSF Logistics Polska sp z oo [2024] EWCA Civ 1479; [2024] WLR(D) 532, CA

Law & Religion UK: The Sikh kirpan as a spiritual, religious and moral sanction: Athwal v State of Queensland [2023] QCA 156, CA

Local Government Lawyer: Injuries and Part 25 experts: In re M (A child)[2024] EWFC 189 (B), Fam Ct

UK Human Rights Blog: Cheshire West revisited: deprivation of liberty and children: In re SM (Deprivation of Liberty; Severely Disabled Child) [2024] EWHC 493 (Fam); [2024] 2 FLR 896, Fam D

Free Movement: EEA national appellant in prison on 31 December 2020 deemed not to be exercising treaty rights: Secretary of State for the Home Department v Manyo (Pakistan) [2024] UKUT 362 (IAC), UT

AND FINALLY

The Tooth, The Whole Tooth and Nothing But the Tooth

This is the title of a post by family lawyer Andrew Pack who blogs as Suesspiciousminds, and who frankly declares that “it is a delight to be able to use a joke in the title that I first read in the 1980 Beano annual”.

The post covers the case of General Dental Council v KK & Anor [2024] EWHC 3053 (Fam) and concerns the unlawful disclosure of family court documents to the General Dental Council thanks to what the judge called “woeful ignorance” by the local authority and the GDC in relation to the confidential nature of documents produced by the family court and the statutory restrictions on their disclosure. What occurred in this case serves as a “salutary warning” to local authorities and to other public bodies about the unlawful mishandling of private information before the family court.

What a jaw! Still, once bitten, twice shy — or at any rate a bit more circumspect about the statutory obligations which bite in such a case. (You see, we can be just as silly.)

That’s enough of what Pack calls “Law, nonsense, and the nonsense of law”.

Next week will be the last roundup of the term and then we can all have a break for the holidays.

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 via Shutterstock