Weekly Notes: legal news from ICLR, 25 March 2024

This week’s roundup of legal news includes crime, sentencing and imprisonment, data protection, legal professional ethics and more. Plus recent case law and commentary.

10 min readMar 27, 2024


Sentencing guidelines

Changes to a number of sentencing guidelines have been published by the Sentencing Council following a consultation on miscellaneous amendments. The changes, which will come into effect on 1 April 2024, include amendments to the manslaughter guidelines made in response to recommendations in the Domestic Homicide Sentencing Review by Clare Wade KC published in March 2023 and the introduction of a new, dedicated mitigating factor providing guidance for courts on sentencing pregnant offenders and new mothers.

The changes to the manslaughter guidelines introduce references to coercive or controlling behaviour to reflect up-to-date terminology and a new aggravating factor, “use of strangulation, suffocation or asphyxiation” to ensure that the seriousness of strangulation is not overlooked in sentencing and make the guidelines more consistent with those for assault.

Effect of pregnancy

The Council has introduced a new mitigating factor, “Pregnancy, childbirth and post-natal care”, in the majority of offence specific sentencing guidelines. The factor sets out what courts may consider when sentencing a pregnant or post-natal woman (someone who has given birth in the previous 12 months) and replaces the current guidance on sentencing pregnant offenders, which was part of the “Sole or primary carer” mitigating factor.

Immigration offences

The Sentencing Council has also issued a consultation on the first ever sentencing guidelines for immigration offences. The guidelines reflect legislative changes to the Immigration Act 1971 brought in by the Nationality and Borders Act 2022.

The proposed guidelines will be used by courts in England and Wales to sentence offenders convicted of immigration offences, including offences of facilitation (assisting unlawful immigration to the UK and helping asylum-seekers to enter the UK), and knowingly entering or arriving in the UK without leave or clearance.

Female offenders

Last week the Ministry of Justice published its Female Offender Strategy Dashboard which presents the key metrics identified in the Female Offender Strategy Delivery Plan via a web-based data visualisation tool. According to the Russell Webster blog,

“This is a very useful resource and allows users to conduct custom analysis, including by locality, ethnicity and age depending on the data set. The dashboard provides a range of data on the four priority areas of the strategy: (1) Fewer women entering the criminal justice system; (2) Fewer women serving short custodial sentences; (3) Better outcomes for women in custody; (4) Protecting the public through better outcomes for women on release”

For each metric, the most recent year’s data is compared with the previous 12 months. However, the detailed information available in the rest of the dashboard helpfully shows trends over the last five years, says the blog.

The data reveals that the number of women arrests has gone up by 3.7% to 92,749 but the number prosecuted for TV licence evasion dropped by 11.8% (although there were still 32,092 prosecutions in 2022). On the whole there were fewer women serving shorter sentences, but self harming incidents increased by 36% to 5,035 per 1000 prisoners. “Tragically”, says the blog, “the female self-harm rate has been increasing every year since 2018 and there has been no improvement over the last year”. It doesn’t mention the issues around pregnancy addressed in the sentencing guidelines.

Prison overcrowding

Self-harm and other violence, as well as problems such as raw sewage flowing through cells, chronic and severe staff shortages, and prisoners locked in cells for 23 hours a day, are mentioned in a new report from JUSTICE which suggests ways of reducing the current prison overcrowding problem.

The report, Time Better Spent: Improving Decision-making in Prisons, by a working party chaired by Nick Hardwick, former Chair of the Parole Board, and formerly His Majesty’s Chief Inspector of Prisons, recommends a series of measures to improve conditions and ease overcrowding, including a “risk-assessed queuing system for prison places” as well as other reforms such as extending legal aid to prison work. It also advocates for the need to find alternative ways to handle mental health crises rather than relying on segregation units and makes several other recommendations to improve the fairness and transparency of decision making in prisons, including improvements to the complaints system.

The press release explains what is meant by a queueing system:

“In Norway, people sentenced to prison are placed in a queue to await an available prison space. Today’s report recommends adopting and tailoring this approach to the UK’s needs by:

  • Pausing all new admissions to prisons officially flagged as having urgent and significant performance concerns until these have been properly addressed.
  • Placing suitably risk-assessed people under electronically monitored ‘home detention curfew’ while they wait for a prison place (home detention curfew releases people from custody with certain rules, e.g. about where they go and when they return home).
  • Ensuring immediate prison spaces for those who pose the greatest safety risks.
  • Deducting this time spent in home detention from people’s sentences.
  • Developing rehabilitation approaches that work in home detention.
  • Not putting more people in a prison if doing so would jeopardise safety and decency and prevent the delivery of appropriate rehabilitative activities.”

Data protection

Fining guidance from ICO

The Information Commissioner’s Office has issued published new data protection fining guidance setting out how it decides to issue penalties and calculate fines. The guidance provides greater transparency for organisations about how the ICO goes about using its fining power.

Publication of the guidance follows a consultation last year, where views were gathered on a draft version. The new guidance replaces the sections about penalty notices in the ICO Regulatory Action Policy published in November 2018.

Among other things, the guidance explains:

  • the legal framework that gives the ICO the power to impose fines –helping people more easily navigate the complexity of the legislation;
  • how the ICO will approach key questions, such as identifying the wider ‘undertaking’ or economic entity of which the controller or processor forms part; and
  • the methodology the ICO will use to calculate the appropriate amount of the fine.

See also: Pinsent Masons, ICO unveils new data protection fining guidance

Legal professions

Cab rank rule

Leaving aside the wilful or disingenuous ignorance of politicians attempting to score a point, do people appreciate the distinction between a lawyer and their client in the same way they distinguish between a doctor and their patient or the provider of any other service and their customer? And to what extent are lawyers obligated to act for those with whom they may have no sympathy or whose aims and beliefs they may not share, may indeed profoundly disagree with?

Recent exchanges in the House of Commons suggest not. So, asks the Secret Barrister on their blog, Is it fair to criticise Keir Starmer for representing terrorists? Ten things you should know.

The post begins at a very basic level, eg What is a barrister? The point about the so-called Cab rank rule is that even the most objectionable client deserves legal representation, particularly when at risk of losing their liberty (or in the past, and in some jurisdictions still, their life); and that “the rule of law requires that everybody — even the most objectionable among us — is treated equally under the law”.

But that’s not the end of it. There are exceptions and qualifications, as the blog goes on to explain and unpack the matter in further detail. It mentions, for example, that

“Last year, around 120 lawyers signed a ‘declaration’ in which they vowed to ‘withhold [their] services in respect of supporting new fossil fuel projects and action against climate protesters exercising their right of peaceful protest’. This included a number of barristers.”

The Secret Barrister was unimpressed, saying “the fact that a minority of barristers may decide to breach ethical rules does not mean that other barristers are not bound”.

Ethics: a changing climate of opinion?

When it comes to climate change, though, not everyone seems to agree. Without apparently providing any answers, Professor Steven Vaughan in a recent post on Lawyer Watch asks a number of provocative questions about the role of lawyers, good and bad, in climate change litigation.

This is not so much about whether to act, since in some cases the lawyers he wants us to think about are employed in-house, and the piece does seem more angled towards solicitors than barristers, but more about how they approach the litigation and the choices they make in pursuing it.

“Let us also think about the lawyers who prosecute climate activists. What do or might these cases say about the rule of law?; the role of lawyers as servants and agents of the rule of law?; about how lawyers understand rule of law concepts of legality and other things that the rule of law may or may not include and wish to protect: property rights, social and other rights, environmental rights even?”

See: Let’s Talk about the Lawyers: Climate Change Litigation, Professional Ethics, and ‘Good’ and ‘Bad’ Case Outcomes


The Bar Standards Board (BSB) has published its annual report on Diversity of the BSB Workforce and Board Members 2023. It follows the publication of the Diversity at the Bar Report 2023, which showed that the Bar continues to become more diverse and more representative of the society that it serves but women and barristers from minority ethnic backgrounds remain underrepresented at the most senior levels of the Bar.

Recent case summaries from ICLR

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

COSTS — Costs management — Costs budget: Hadley v Przybylo, 15 Mar 2024 [2024] EWCA Civ 250; [2024] WLR(D) 137; [2024] EWCA Civ 250, CA

CRIME — Criminal damage to property — Defence to charge: Attorney General’s Reference No 1 of 2023, 18 Mar 2024 [2024] EWCA Crim 243; [2024] WLR(D) 130, CA

CRIME — Proceeds of crime — Recovery of assets: Ahmet v Tatum, 15 Mar 2024 [2024] EWCA Civ 255; [2024] WLR(D) 134, CA

CRIME — Sentence — Fraud: R v Abbasi, 20 Mar 2024 [2024] WLR(D) 135, CA

DISCRIMINATION — Disability — Employment: Rentokil Initial UK Ltd v Miller, 14 Mar 2024 [2024] EAT 37; [2024] WLR(D) 128, EAT

FINANCIAL SERVICES — Regulated activities — Loan agreements: Kumar v LSC Finance Ltd, 15 Mar 2024 [2024] EWCA Civ 254; [2024] WLR(D) 131, CA

IMMIGRATION — Leave to enter — Application: R (LND1) v Secretary of State for the Home Department, 21 Mar 2024 [2024] EWCA Civ 278; [2024] WLR(D) 136, CA

LIMITATION OF ACTION — Judgment debt — Interest: Deutsche Bank AG v Sebastian Holdings Inc, 14 Mar 2024 [2024] EWCA Civ 245; [2024] WLR(D) 121, CA

LOCAL GOVERNMENT — Combined authority — Policing: R (Police and Crime Commissioner for the West Midlands) v Secretary of State for the Home Department, 18 Mar 2024 [2024] EWHC 604 (Admin); [2024] WLR(D) 132, KBD

PLANNING — Development — Planning permission: R (Suffolk Energy Action Solutions SPV Ltd) v Secretary of State for Energy Security, 22 Mar 2024 [2024] EWCA Civ 277; [2024] WLR(D) 138, CA

Recent case comments on ICLR

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

Legal Futures: Family judge tells divorcing couples to use ADR before going to court: Re X (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam); [2024] WLR(D) 116, Fam D

Blackstone Chambers: Granville Technology Group Ltd v Chunghwa Picture Tubes Ltd [2024] EWHC 13 (Comm), KBD

Cloisters Chambers: Discrimination, belief and the “fundamental party rights”: the judgment in Ali v Green Party of England and Wales: Ali v Green Party of England and Wales, 09 Feb 2024 Judgment transcript, County Ct

A Lawyer Writes: Prison governor avoids prison: R (Kim) v Governor of His Majesty’s Prison Wandsworth [2024] EWHC 645 (Admin), KBD

Mental Capacity Law and Policy: The tendency of human nature to be swayed by interest rather than duty: Irwin Mitchell Trust Corporation v PW & Anor [2024] EWCOP 16, Ct of Protection

Nearly Legal: Suitability, disability discrimination and dogs — temporary accommodation: R (AB) v Westminster City Council [2024] EWHC 266 (Admin), KBD

Local Government Lawyer: Condition precedents in light of Lancashire Schools v Lendlease: Lancashire Schools SPS Phase 2 Ltd v Lendlease Construction (Europe) Ltd [2024] EWHC 37 (TCC), KBD

Gatehouse Chambers: To Babanaft or not to Bananaft — the extra jurisdictional effect of an anti-suit injunction): Renaissance Securities (Cyprus) Ltd v Chlodwig Enterprises Ltd [2023] EWHC 3160 (Comm); [2024] Bus LR 68; [2023] WLR(D) 528, KBD

Local Government Lawyer: Vulnerable adults and non-recognition of marriage: In re SA (Declaration of Non-Recognition of Marriage) [2023] EWCA Civ 1003; [2023] WLR(D) 368, CA

Doughty Street Chambers: Disrespectful of the rule of law’? Secretary of State for the Home Department v Maleci [2024] UKUT 28 (IAC), UT

Local Government Lawyer: Court of Appeal rejects distinction between ‘aggressive’ and ‘passive’ begging when it comes to obtaining anti-social behaviour injunctions: Swindon Borough Council v Abrook [2024] EWCA Civ 230; [2024] WLR(D) 110, CA

Legal Futures: High Court upholds wasted costs order against law firm: Rainer Hughes Solicitors v Liverpool Victoria Insurance Company Ltd [2024] EWHC 585 (KB), KBD

UK Human Rights Blog: Dillon and others’ applications for judicial review — a radically unradical analysis of the Legacy Act: Dillon & Ors, Re application for judicial review [2024] NIKB 11, KBD (NI)

Local Government Lawyer: Shedding light on solar farm capacity: Galloway v Durham County Council [2024] EWHC 367 (Admin), KBD

UK Labour Law: In the heat of the moment : the statutory concept of dismissal and impulsive resignations: Omar v Epping Forest District Citizens Advice [2023] EAT 132; [2024] ICR 301; [2023] WLR(D) 454, EAT

And finally…

A Happy Easter to all our readers

The Hilary Legal Term ends on Wednesday 27 March 2024. The Easter Legal Term will begin on 9 April 2024. Enjoy the break.

That’s it for now. We look forward to seeing you again next Term. Other content may appear on our blog in the meantime.

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.