Weekly Notes: legal news from ICLR, 5 February 2024
This week’s roundup includes youth crime and open justice, AI regulation, international and domestic rule of law, and retained EU legislation. Plus recent case law and commentary.… Continue reading
Naming child killers
The two teenagers convicted on 20 December 2023 for the murder of 16-year-old Brianna Ghey were sentenced last week to be detained at His Majesty’s Pleasure. They had been referred to throughout their trial as X and Y, under reporting restrictions imposed pursuant to section 45 of the Youth Justice and Criminal Evidence Act 1999. But for reasons given earlier by the trial judge, Mrs Justice Yip, on 21 December, they were both named when, on 2 February 2024, they were sentenced.
Sentencing them, the judge explained that detention at His Majesty’s Pleasure was a life sentence. “You will only be released if, in the future, it is decided that you no longer present a danger. That decision will be for the Parole Board.”
The decision to name the two defendants, both aged just 15 at the time of their offence, was made in response to applications by the media, for whom the murder and ensuing trial was a sensational story, and also one of legitimate public concern, which the judge recognised:
“The murder of Brianna was a shocking event. Brianna was only 16 years’ old at the date of her death. She was transgender and had a significant social media profile. Her killing attracted immediate interest and vigils were held for her at locations throughout the United Kingdom. As details of her murder emerged, the shock and the public interest increased. Brianna was murdered in a particularly brutal way. The two defendants are themselves children who were aged just 15 at the time of the offence. Messages passing between them point to a significant degree of planning. Understandably, there has been widespread reporting of this case both in this country and abroad. Full and accurate reporting of the proceedings serves an important purpose in assisting public understanding.”
Against this, local authority, mental health, and youth service professionals working with the defendants urged the judge not to lift the reporting restrictions. There was also concern about the effect on their families, with reports of death threats having been made.
But the restriction imposed on reporting their identities would have expired in any event upon their reaching the age of 18, and section 45 of the 1999 Act permits the court to make an excepting direction to lift the restriction before that time if satisfied that the restriction is a “substantial and unreasonable restriction on the reporting of proceedings” and that it is “in the public interest” to relax it. In so determining, the court must take account of the defendant’s welfare.
But, said the judge, given the presumption in favour of open justice, the onus is on the defence to justify reporting restrictions. The court must be satisfied that, on the facts of the case, the welfare of the child outweighs the strong public interest in open justice. Moreover, the purpose of section 45 was not to protect family members of a convicted defendant. Waiting till the defendants reached the age of 18 might simply prompt a fresh wave of publicity, and continuing restrictions in the meantime would inhibit informed debate and restrict the full reporting of the case.
The balance should be struck, the judge concluded, by continuing the restriction until sentencing, to prepare the parties concerned and allow time for arrangements and adjustments to be made, but then to name the two defendants at their sentencing hearing.
- Richard Jones, Press Gazette, Why Brianna Ghey’s teenage killers should be named in media
- Prof Ian Acheson, Spectator, Should Brianna Ghey’s killers ever be released?
The judge does not mention, nor does she appear to have been asked to consider, the possibility of making a lifelong anonymity order in respect of the two under-age defendants. This jurisdiction, generally known as the “Venables jurisdiction” after one of the two child killers of toddler Jamie Bulger in 1993, takes the form of an injunction “contra mundum” (against the whole world). As well as in the Venables case itself (Venables v News Group Newspapers Ltd  EWHC QB 32;  Fam 430) it was exercised in the case of Mary Bell, who had killed two small children in 1968 (X (formerly Bell) v O’Brien  EWHC 1101 (QB);  EMLR 37) and the Edlington brothers, who had inflicted grievous bodily harm and committed various sexual offences against three young children (A v Persons Unknown  EWHC 3295 (Ch);  EMLR 11). More recently, the two child killers of Angela Wrightson, referred to as the “Snapchat killers”, were given lifelong anonymity as D and F in D v Persons Unknown  EWHC 157 (QB). However, in most of these cases the child defendants were younger — 10½ in Venables, 11 in Bell, 10 and 12 in Edlington, 13 and 14 in D.
A Venables order was also made in respect of an adult, Maxine Carr, who had provided a false alibi for Ian Huntley after he had killed two young girls in a notorious case in Soham (Carr v News Group Newspapers Ltd  EWHC 971 (QB)).
The jurisdiction was considered in some detail more recently in the case of a 14-year-old convicted of terrorism offences: RXG v Ministry of Justice  EWHC 2026 (QB);  QB 703. The issue in that case was whether the common law jurisdiction to grant such an injunction had survived the enactment of section 45A of the 1999 Act, which makes provision for lifelong reporting restrictions in criminal proceedings for witnesses and victims, but not an accused, under the age of 18. The court held that it had, and that in enacting section 45A Parliament had consciously placed anonymity orders for witnesses and victims on a statutory footing so as to remove an anomaly which had been identified by the courts.
The justification for the orders made in these earlier cases was mainly based on the defendants’ own welfare and risks to their life or health, applying various Convention articles under the Human Rights Act 1998. But in the present case there is another reason for considering suppression of their identity, which is less to do with the defendants’ own welfare and more to do with the prevention of crime more generally. It is apparent from evidence emerging at their own trial that these defendants were morbidly obsessed with the idea of killing and with sadistic conduct, and sought out the examples of other killers.
To name them is to admit them into a hall of infamy, and to make them the focus of a ghoulish fascination by similarly obsessive admirers. As Penelope Gibbs of Transform Justice pointed out in discussing the 15-year-old defendant in the so-called “conker murder” in 2012, naming him means “his terrible crime is immortalised in cyberspace”: see Law Society Gazette, Naming and shaming child offenders.
The phenomenon is horribly well illustrated in Penance, a recent novel by Eliza Clark, which we reviewed here.
While it is true that a contra mundum injunction will not prevent a certain amount of naming and shaming on the unregulated net (or even social media), it can prevent the name being visibly trapped in the google spider’s web and thereby locked in the public stocks of permanent online accessibility. It can reduce, at least, the risk of copycat conduct, or the spilling over of fanfiction into fact. (This is particularly relevant to terrorist offenders, as was recognised by New Zealand’s then Prime Minister, Jacinda Ardern, when she refused to name the Christchurch mosque shooter in 2019, so as to deny him the notoriety he sought.) But the question — which might logically only have arisen when the defendants reached 18, had their anonymity been preserved in the meantime under section 45 — cannot arise now that they have been inducted into that latterday hall of infamy.
AI in law
Bar Council guidance
The Bar Council of England and Wales has announced new guidance on barristers’ use of generative AI tools. It concludes that there is nothing inherently improper about using reliable AI tools for augmenting legal services, but they must be properly understood by the individual practitioner and used responsibly. Key points are
- not sharing confidential information or intellectual property with a faceless chatbot where it might be repurposed for machine learning
- not relying on any citations or suggestions without checking their genuineness and veracity
- Keep abreast of practice rules that might require disclosure of the use of generative AI in preparing materials for litigation
The guidance has been developed by the Bar Council’s IT Panel in consultation with the Bar Council’s Regulatory Review Panel. It will be kept under review, as you’d expect, given the fast changing nature of the technology.
Although the guidance mentions publicly accessible models such as OpenAI’s ChatGPT and Google’s Bard, the greater likelihood is that barristers’ use of large language models (LLMs) will be via third party providers of legal information and litigation support services, such as Lexis, Westlaw, vLex, and (watch this space) ICLR. That may make it harder to comply with requirements to declare the extent to which such models may have been relied upon in the course of trial preparation, as suggested in the guidance.
Comms committee report
Last week the House of Lords Communications and Digital Committee issued its report on Large language models and generative AI (HL Paper 54). The report follows an inquiry launched in July 2023, which called for written contributions by 5 September 2023. Launching the inquiry, Baroness Stowell of Beeston, chair of the committee, said it aimed to “take a sober look at the evidence across the UK and around the world, and set out proposals to the Government and regulators to help ensure the UK can be a leading player in AI development and governance.”
Launching the report last week, the committee said the government was currently too focused on regulation of AI and that a more positive vision for LLMs was needed to reap the social and economic benefits and not “miss the AI goldrush”.
The report issues a stark warning about the “real and growing” risk of regulatory capture, as a multi-billion pound race to dominate the market deepens. “Without action to prioritise open competition and transparency, a small number of tech firms may rapidly consolidate control of a critical market and stifle new players, mirroring the challenges seen elsewhere in internet services.”
The Committee considered the risks around LLMs and said the “apocalyptic concerns about threats to human existence” were exaggerated and “must not distract policy makers from responding to more immediate issues”. The report found there were more limited near-term security risks including cyber attacks, child sexual exploitation material, terrorist content and disinformation.
One area of AI disruption that can and should be tackled promptly was the use of copyrighted material to train LLMs, said Baroness Stowell.
The report sets out 10 core recommendations. These include measures to boost opportunities, address risks, support effective regulatory oversight — including to ensure open competition and avoid market dominance by established technology giants — achieve the aims set out in the AI White Paper, introduce new standards, and resolve copyright disputes.
Rule of law
International law and order
“We are in a global contest of ideas,” Alex Chalk KC MP told his audience last week in Washington DC, “a contest between rule of law nations like ours and those who offer an authoritarian alternative, a solution that says ‘might is always right’.”
The global consensus, which had helped secure the world’s stability and success since 1945, was now threatening to break down altogether due to the actions of international actors — such as Russia and Iran — who were creating hostile geopolitical spheres of influence and disregarding the Rules Based International Order.
While rule of law underpinned prosperity, its absence fed poverty, insecurity and instability. For citizens, this left many feeling they had no choice but to leave their home country and seek better opportunities elsewhere in the world. This led to record levels of migratory movements, and fuelled illegal migration.
This was the Lord Chancellor’s cue to swerve somewhat vertiginously from the need to maintain international shipping lanes against Houthi terror attacks backed by “agents of chaos” in Iran, into a boast about the Rwanda Bill which he described as “landmark legislation” designed to make clear “once and for all that it is Parliament that should decide who comes to our country, not international criminal gangs”. It was thus in the spirit of the common law’s “flexibility” (albeit with legislation) that the UK was addressing the challenge of uncontrolled migration, and the evolution of the rules-based system as a whole.
Read the speech in full: Lord Chancellor makes international rule of law speech in Washington
Employment Tribunals: a modest proposal?
While on the subject of the rule of law, it may be recalled that this was the main plank of the Supreme Court’s reasoning in finding the decision of Chalk’s predecessor as Lord Chancellor, Chris Grayling MP, to impose steep fees on access to employment tribunals to be unlawful: see R (UNISON) v Lord Chancellor  UKSC 51;  AC 869. The court held that the constitutional right of access to the courts was inherent in the rule of law and that the Order imposing unaffordable fees on its exercise effectively prevented such access and was therefore unlawful at common law.
In consequence of the court’s ruling, the government could, in the manner of the Rwanda (Deemed Safety of) Bill, have legislated again, with a provision declaring fees of even a thousand pounds (the Prime Minister’s idea of a cheeky bet) to be perfectly affordable to a recently sacked worker; but instead they meekly paid back everyone who’d been overcharged, and had another think.
To help them rethink the Ministry of Justice have embarked on a public consultation, setting out “a proposal for introducing modest fees” in the Employment Tribunals and the Employment Appeal Tribunal. The reason for doing so is “to contribute to the continuous improvement of His Majesty’s Courts and Tribunals Service and reduce the cost to the taxpayer to fund these services”.
“Lessons have been learned” from the Unison case, they say, and the proposed new fees are “proportionate and affordable”: £55 to bring a claim in the employment tribunal and another £55 if the case gets to the appeal tribunal. Moreover, for anyone who really can’t afford it, there is a Help with Fees (HwF) scheme to support them, in order to protect access to justice.
The consultation will run from 29 January 2024 for a period of 8 weeks, and will close on 25 March 2024.
- Joshua Rozenberg, Fees planned for employment claims
- Unison: Unfair tribunal fees plan shows government is out of ideas, says UNISON
Retained EU law
The Department for Business and Trade has published its first half-yearly report on progress in revoking and reforming Retained European Union Legislation (REUL), since the enactment of the Retained EU Law (Revocation and Reform) Act 2023.
The Retained EU Law Parliamentary Report June 2023 — December 2023 was published on 22 January 2024. The report contains both a dashboard and a roadmap, suggesting that the government must really now be in the driving seat, as we head to those sunlit uplands. And the car must be quite whizzy, what with so many instruments on its dashboard and all that talk of accelerating reform. But first, the garage, or carport, which sounds rather grand with its three pillars:
“The Report begins by setting out the three pillars of the Smarter Regulation programme and explaining how REUL reform fits into this wider programme. The three pillars of Smarter Regulation are: minimising the regulatory burden and future proofing the UK’s regulations; making regulation the last resort; and ensuring a wellfunctioning landscape of regulators.
The Report then summarises the data on the updated REUL Dashboard. The Dashboard provides the public with information on the amount of REUL and where it sits across departments. It also provides data on the progress Government is making in accelerating REUL reform. Since the previous update to the Dashboard over 1000 REUL instruments have been either revoked or reformed, meaning that over 2000 instruments have already been revoked or reformed in total.
Next, the Report sets out the progress made in revoking and reforming REUL in the current reporting period, building on the nearly 600 pieces of REUL revoked by the REUL Act itself….”
And so forth. The executive summary concludes on an upbeat note, or perhaps a glad little toot on the horn:
“Looking further forward, this Report provides a roadmap for Government’s ambitious proposals to revoke and reform further REUL. The Government is on track to reform or revoke over half of the entire stock of REUL accrued in the more than 40 years that the UK was a member of the EU by June 2026.”
It may seem odd that the government should be using a roadmap if it is, like a train, “on track”, but there we go.
For more on this, with some different metaphors, see Kenneth Armstrong, UK Constitutional Law Association: The First Statutory Report on Retained EU Law. This begins:
“Successive UK Governments have promised to regulate less, better or smarter to promote economic growth and competitiveness while protecting consumers, workers and the environment. Relatively low visibility reviews and reports — recast and relaunched over time — have belied the public politics of ‘burning red tape’. But as the fireworks faded over Westminster as 2024 began, you could be forgiven for thinking that the lingering smoke was from the incineration of swathes of regulation produced during EU membership and revoked by the Retained EU Law (Revocation and Reform) Act 2023. Quite how big this bonfire really is, and how much is smoke and mirrors, is quantified in the first six-monthly statutory report to Parliament under section 17 of the Act and published on 22 January 2024. This post examines what we do and do not learn from this report about what is really changing in UK regulatory policy.”
Both the Act itself, and all retained EU law, can be searched for and read via the Legislation search on ICLR.4.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CONTEMPT OF COURT — Committal order — Civil contempt: ADM International Sarl v Grain House International SA, 25 Jan 2024  EWCA Civ 33;  WLR(D) 37, CA
CRIME — Firearms — Possession of: R v Bassaragh, 25 Jan 2024  EWCA Crim 20;  WLR(D) 44, CA
EMPLOYMENT — Transfer of undertaking — Unfair dismissal: Sean Pong Tyres Ltd v Moore, 29 Jan 2024  EAT 1;  WLR(D) 39, EAT
HUMAN RIGHTS — Respect for private life — Gender identity: R (Castellucci) v Gender Recognition Panel (Castellucci v Minister for Women and Equalities), 17 Jan 2024  EWHC 54 (Admin);  WLR(D) 20, DC
JUDICIAL REVIEW — Practice — Disclosure: R (IAB) v Secretary of State for the Home Department, 02 Feb 2024  EWCA Civ 66;  WLR(D) 43, CA
LEGAL AID — Funding — Publicly funded work: R (Law Society) v Lord Chancellor, 31 Jan 2024  EWHC 155 (Admin);  WLR(D) 41, DC
PRACTICE — Disclosure — Legal professional privilege: Al Sadeq v Dechert LLP, 24 Jan 2024  EWCA Civ 28;  WLR(D) 36, CA
PUBLIC HEALTH — Prevention of disease — Avian flu: R (LJ Fairburn & Son Ltd) v Secretary of State for Environment, Food and Rural Affairs, 19 Jan 2024  EWHC 65 (Admin);  WLR(D) 42, KBD
TRUST OF LAND — Farm — Joint interest: Williams v Williams, 01 Feb 2024  EWCA Civ 42;  WLR(D) 40, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Local Government Lawyer: Time to address “silent crisis” of finding safe placements for children with profound needs long overdue, says judge: In re X (Child: Deprivation of Liberty: Lack of Placement)  EWHC 3416 (Fam), Fam D
Inforrm’s Blog: Blake v Fox, It all comes down to serious harm: Blake v Fox  EWHC 146 (KB), KBD
Barristerblogger: Calocane: horrific though his crimes were, the CPS and the judge made the right decisions: R v Calocane (Valdo), Sentencing remarks, Crown Ct
A Lawyer Writes: Cleverly avoids contempt proceedings: R (El-Ashkar) v Secretary of State for the Home Department, Judgment PDF; Press summary, UT
Legal Futures: Criminal legal aid “coming apart at the seams”, High Court says: R (Law Society of England and Wales) v The Lord Chancellor  EWHC 155 (Admin), KBD
UK Human Rights Blog: Either not Neither: further consideration of non-binary identity by the High Court: R (Castellucci) v Gender Recognition Panel  EWHC 54 (Admin);  WLR(D) 20, DC
Law & Religion UK: State secularism and banning foreign religious education: Sardar Babayev: Sardar Babayev v Azerbaijan (Application nos 34015/17 and 26896/18);  ECHR 88, ECtHR
Out-Law: UK High Court dismisses Thatchers cider ‘copycat’ claims: Thatchers Cider Company Ltd v Aldi Stores Ltd  EWHC 88 (IPEC), Ch D
Law Society Gazette: The wind cries arguable case: Hendrix rights case against Sony will go to trial: Noel Redding Estate Ltd v Sony Music Entertainment UK Ltd  EWHC 128 (Ch), Ch D
UK Constitutional Law Association: Constitutional Accountability, Intra-party Processes, and Tortoise Media: R (Tortoise Media Ltd) v Conservative and Unionist Party  EWHC 3088 (Admin), KBD
Local Government Lawyer: Court of Appeal rejects appeal over finding that manifest error in procurement was not “sufficiently serious” for damages award: Braceurself Ltd v NHS England (No 2)  EWCA Civ 39, CA
Tweet of the week
is from a Scottish Law lecturer on why legislation rocks, or at any rate rules:
— Scott Wortley (@Scott_Wortley) February 4, 2024
That’s it for this week. Thanks for buying my book (there’s still time), and thanks for all your tweets, toots, posts and threads.
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: Vigil for the murdered transgender teenager Brianna Ghey (Shutterstock)