Weekly Notes: legal news from ICLR, 17 January 2022

Photo by Chandler Cruttenden on Unsplash


Storm over flows of waste

“A ‘chemical cocktail’ of sewage, agricultural waste, and plastic is polluting the waters of many of the country’s rivers,” according to the House of Commons Environmental Audit Committee, who last week published their latest report on Water quality in rivers. Among its conclusions it said:

“Water companies appear to be dumping untreated or partially treated sewage in rivers on a regular basis, often breaching the terms of permits that on paper only allow them to do this in exceptional circumstances.”

“Successive governments, water companies and regulators have grown complacent and seem resigned to maintaining pre-Victorian practices of dumping sewage in rivers.”

“The water regulator Ofwat has hitherto focused on security of water supply and on keeping bills down with insufficient emphasis on facilitating the investment necessary to ensure that the sewerage system in England is fit for the 21st century.”

A particular concern is the abuse of the regulatory mechanism for “storm overflows”, which has been the subject of recent complaint by campaigners. The report explains that overflows are intended to act as safety valves on the sewerage system. Their use is subject to permits granted by the Environment Agency. Without these overflows, sewage could potentially back up into domestic and commercial properties when the sewerage system is overloaded. However, their use appears to be increasingly routine, as pressures on the sewerage network grow.

Last year an attempt was made during parliamentary debating of the Environment Bill to introduce tougher sanctions for sewage pollution: see Weekly Notes, 25 October 2021. The legislation eventually passed as the Environment Act 2021 provides by section 80 for the amendment of the Water Industry Act 1991 to include a new chapter on Storm overflows, under which the Secretary of State must prepare a plan for the reduction of sewage discharges and report back to Parliament by September 2022. Let’s see if they do.

IP and media

Digital assets

It’s probably fair to say that most of us, while being aware of the existence of blockchain, cryptocurrencies, and digitals assets such as non-fungible tokens, probably aren’t up to speed on their legal status and how, if at all, they are regulated. Then there is the question of how law might affect the metaverse. If all this seems a bit bewildering, some recent articles may help dispel a few myths:

Nick Holmes, writing on the Internet Newsletter for lawyers, discusses Web3: blockchain, cryptocurrencies, NFTs — where will it end? He explains the context and some of the key concepts, sets out some pros and cons, and lists further reading for anyone interested in knowing more.

Dr Julia Hugendubel on the IP Kat blog describes recent developments concerning Tokenization of intellectual property for IP rights management. In a nutshell, she explains, “tokenization” means using a smart contract (i.e., a computer program) to create a token that is then anchored in a blockchain.

Although cryptocurrencies can appear to be a bit dodgy, often associated in the media with proceeds of crime or unregulated speculation, there are lots of legal implications to be considered too, such as how digital currency and other digital assets should be administered under a will, or assigned in accordance with a contract or deed.

The courts of the future will increasingly need to grapple with smart contracts and distributed ledger technology, as the Master of the Rolls, Sir Geoffrey Vos said recently, at an event to launch the second edition of the Law Society’s report on Blockchain: legal and regulatory guidance published in collaboration with the Tech London Advocates (TLA) Blockchain Legal and Regulatory Group. (See Law Society Gazette, Every lawyer will require familiarity with crypto, says MR.)

Looking further ahead, there may come a time when remote video hearings begin to look a bit retro, as we grapple with virtual trials in the metaverse. Will those VR headsets actually fit on top of one’s wig, though?


Law have mercy

The CPS has launched a consultation on public interest guidance for suicide pact and ‘mercy killing’ type cases. This consultation runs from 14 January to midnight of 8 April 2022. It is seeking the views of interested parties on a proposal to revise its existing legal guidance on Homicide: Murder and Manslaughter to deal with suicide pacts and so-called ‘mercy killings’.

It is proposed that a new section (see: Proposed changes to ‘Homicide: Murder and Manslaughter’ Guidance) is added to the current guidance. The section seeks to clarify the relevant public interest factors that should be considered before proceeding with a prosecution in those exceptional cases where there is evidence of a suicide pact or ‘mercy killing’.

There is already separate guidance on Assisting or Encouraging Suicide under section 2 of the Suicide Act 1961. But where the course of conduct goes beyond encouraging or assisting suicide, because the suspect takes or attempts to take the life of the victim (i.e. the victim does not take or attempt to take their own life, even though they may desire it or would do so if they were able to), the appropriate charge will be murder, manslaughter or attempted murder.

The proposals are discussed in Joshua Rozenberg’s interview with the Director of Public Prosecutions, Max Hill QC, in the latest digital edition of the Law Society Gazette (p 11).

Increased sentencing power for magistrates

Magistrates are to have their sentencing powers increased in order to reduce pressure on the Crown Courts and speed up justice, according to the Ministry of Justice. Under plans to be announced by Justice Secretary Dominic Raab, the maximum 6-month prison sentence that can currently be handed out by Magistrates is to be doubled to a year. This will reduce the need for more serious cases to go to the Crown Court for sentencing.

Retaining more cases in the Magistrates’ Courts, which have been less severely affected by Covid, means Crown Courts can focus their resources on tackling the backlog which has built up during the pandemic. But not everyone is happy with the change. According a report in The Times, “Penal reform campaigners described the measure as ‘the height of irresponsibility’, warning that it would stretch the prison system to breaking point.”


Video-witnessing extended

The change in the law to permit vulnerable people who are self-isolating to witness wills remotely using video technology has been extended for a further period, while the substantive law continues to be reviewed by the Law Commission.

The Wills Act 1837 (Electronic Communications) (Amendment) Order 2022 (SI 2022/18) extends from 2022 to 2024 the period during which the definition of “in the presence of two or more witnesses” in section 9 of the Wills Act 1837 is to include “presence by means of videoconference or other visual transmission”. The previous change was made by The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 (S.I. 2020/952).

According to the Ministry of Justice’s announcement,

“Law Society research has found that around 14 percent of legal professionals who had been involved in making a will since the change in 2020 had used software such as Zoom or FaceTime for witnessing wills.

To protect people against undue influence and fraud, two witnesses are still required and virtual witnessing is only recognised if the quality of the sound and video is sufficient to see and hear what is happening.”

Recent case summaries from ICLR

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

AIRCRAFT — Carriage by air — Compensation and assistance to passengers: AD v Corendon Airlines (JG v OP (acting as liquidator of Azurair GmbH), Eurowings GmbH v flightright GmbH, AG v Austrian Airlines AG), 21 Dec 2021 (Joined Cases C-146/20, C-188/20, C-196/20 and C-270/20); EU:C:2021:1038; [2022] WLR(D) 8, ECJ

CHILDREN — Financial provision — Jurisdiction: DN v UD, 21 Dec 2021 [2021] EWCA Civ 1947; [2022] WLR(D) 11, CA

CLAIM — Judgment — Consequentials; DAMAGES — Deceit — Measure of damages: Tuke v Hood, 14 Jan 2022 [2022] EWCA Civ 23; [2022] WLR(D) 25, CA

INSURANCE — Contract — Construction: Spire Healthcare Ltd v Royal & Sun Alliance Insurance Ltd, 11 Jan 2022 [2022] EWCA Civ 17; [2022] WLR(D) 23, CA

JUDICIAL REVIEW — Appeal — Criminal conviction; COURT OF APPEAL (CIVIL DIVISION) — Jurisdiction — Criminal cause or matter: R (Cleeland) v Criminal Cases Review Commission, 11 Jan 2022 [2022] EWCA Civ 5; [2022] WLR(D) 18, CA

LOCAL GOVERNMENT — Community care services — Discharged mental patient: R (Worcestershire County Council) v Secretary of State for Health and Social Care, 22 Dec 2021 [2021] EWCA Civ 1957; [2022] WLR(D) 14, CA

POLICE — Misconduct panel — Immunity from suit: Eckland v Chief Constable of the Avon and Somerset Constabulary, 30 Dec 2021 [2021] EWCA Civ 1961; [2022] WLR(D) 15, CA

PRISONS — Prisoners’ rights — Release on licence: R (Pearce) v Parole Board, 14 Jan 2022 [2022] EWCA Civ 4; [2022] WLR(D) 22, CA

PUBLIC PROCUREMENT — Contract award procedure — Public services contract: R (Good Law Project Ltd) v Secretary of State for Health and Social Care, 12 Jan 2022 [2022] EWHC 46 (TCC); [2022] WLR(D) 21, QBD

REVENUE — Value added tax — Deductibility of input tax: Zipvit Ltd v Revenue and Customs Comrs, 13 Jan 2022 (Case C-156/20); EU:C:2022:2; [2021] WLR(D) 24, ECJ

SOCIAL SECURITY — Disability living allowance — Suspension: MOC v Secretary of State for Work and Pensions, 11 Jan 2022 [2022] EWCA Civ 1; [2022] WLR(D) 16, CA

Recent case comments on ICLR

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

Law & Religion UK: COVID-19, mootness and restrictions on religious observance in Ireland: Ganley: Ganley v Minister for Health [2021] IEHC 822, HC (Ireland)

A Lawyer Writes: No comfort for the duke: Giuffre v Prince Andrew, Transcript 21-cv-6702 (LAK)

Law & Religion UK: Tai Chi and religion in Canada: another view: FLK Institute of Taoism v MPAC, 2022 ONSC 57, Superior Ct (Ontario)

UK Supreme Court Blog: Case Comment: Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45; [2021] 3 WLR 1011; The Times, 8 November 2021, SC(E)

Nearly Legal: Settled by Settlers: Firstport Property Services Ltd v Settlers Court RTM Co Ltd [2022] UKSC 1, SC(E)

UK Supreme Court Blog: Case Comment: Alize 1954 v Allianz Elementar Versicherungs AG (The Libra) [2021] UKSC 51; [2021] Bus LR 1678; [2021] 2 Lloyd’s Rep 613; [2021] WLR(D) 577, SC(E)

Free Movement: Slashing support payments to potential slavery victims defied clear policy: R (JB) v Secretary of State for the Home Department [2021] EWHC 3417 (Admin), QBD

NIPC Law: Patents —Promptu Systems Corpn v SKY UK Ltd [2021] EWHC 2021 (Pat), Ch D

Other recent publications

Criminal defence: dead in a decade?

Catherine Baksi in the Law Society Gazette on the shrinking criminal bar, which she says “will die out within 10 years if the present rate of attrition continues”. Given the government’s lack of concern, it is up to the profession itself to urge its case with the public and ensure this dedicated profession can not just survive but thrive.

What the apology to the Queen shows about the theory and practice of the Crown and the Constitution

David Allen Green on the Law and Policy Blog discusses the constitutional context and significance of the Prime Minister’s recent apology to the Queen for having attended a party (or work event) on the very eve of her late consort’s sombre and lonely funeral.

“Not least as it shows the actual sentiments of a government that promotes performative patriotism with numerous flags behind ministers and wants the national anthem played on the television each day. But then again, this was the government who provided unlawful advice to the Queen on prorogation — and it seems that, like lockdown regulations, genuine regard for the Queen is for other people.”

In another post on the same blog, he considers the terms of reference and difficulty faced by Sue Gray’s official investigation of the party allegations: Some thoughts about the Sue Gray investigation

What is UK government hiding on WhatsApp? We have no idea — that’s the problem

Cori Crider on Open Democracy discusses the lack of accountability of government ministers and officials when they use messaging services like WhatsApp and fail to keep a record of what they said. Examples are given of recent events requiring investigation, which has been hampered by lack of access to such messages.

“Messages on apps such as WhatsApp or Signal can be set to automatically delete, either immediately after a conversation or after a set period. And, once they’ve been deleted by both the sender and recipients, that’s it — they’re gone for good. The government should be archiving key messages of decisions, but it’s not.”

The politics of the pandemic in the Court of Protection

Post on the Open Justice Court of Protection blog by Celia Kitzinger, Claire Martin and Daniel Clark, discussing the case of an autistic learning-disabled man in his 30s who has not been vaccinated against coronavirus (COVID-19) because his sister does not agree that vaccination is in his best interests. The Clinical Commissioning Group responsible for his care has made an application to court, supported by the Official Solicitor, for an order that vaccination is in P’s best interests and should be administered as soon as possible. The case raises a number of interesting issues and is a good example of the excellent work done by this blog in watching and describing the work of the court.

And finally…

Poem of the week

is from the poet lawreate, Dr Corgi O’Doggerel with the latest on the Royal Courts of Justice:

For Andrew Windsor spare a thought
A prince now in a different court
He never believed it would come to this
When he put his case to Emily Maitlis

He hired his own lawyers to argue the cause
and said he hadn’t broken any laws.
He said the Giuffre claim was a fiction
and challenged the US jurisdiction.

Then he said the plaintiff was bound
by the Epstein settlement, on the ground
that it also covered ‘potential defendants’ -
including the British monarch’s descendants.

But stern Judge Kaplan was not to be swayed
His judgment left Andy sore dismayed.
There’s no way now to save his face:
If he can’t sweat it out, he must settle the case.

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Keep safe and well.

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.




The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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