Weekly Notes: legal news from ICLR, 30 May 2023
This week’s roundup of legal news included swearing in a Justice Minister, reforming rape trials, and recent case law and commentary.
New Lord Chancellor sworn in
Last week Alex Chalk KC MP was officially sworn in as Lord Chancellor. He is depicted standing at the door to the judges’ entrance to the Royal Courts of Justice, next to a sign that says Strictly Private. Chalk is also, of course, Secretary of State for Justice, ie a cabinet minister running a big department; but unlike the Lord Chancellors of old, he does not also sit as a judge. Instead, his role, as reiterated in swearing in, is to protect the judiciary — something not all his predecessors have succeeded in doing or in one case even tried to do.
Unlike his immediate predecessor he is not also Deputy Prime Minister. His combined ministership is probably enough to be going with and there has been relief in legal circles that he appears dedicated to performing his task with suitable dedication and purpose and without embarking on any political vanity projects.
Welcoming his appointment, the Lord Chief Justice, Lord Burnett of Maldon suggested that, even without the additional Cabinet role, the current portmanteau of responsibilities of a Lord Chancellor and Secretary of State for Justice might be relieved of the task of managing the prison system, which added “an obvious potential conflict of interest and problems themselves enough to consume the energies of a superhuman”.
He also expressed the hope that Chalk might stay for a longer term than some of his predecessors:
“My Lord Chancellor, you are my seventh in just under six years, albeit one twice. You, I hope are my last otherwise I would find myself, somewhat surprisingly, with something in common with Elizabeth Taylor. She has eight husbands — one twice.”
Also welcoming the appointment, Samuel Townend KC, deputy chair of the Bar Council, having praised Chalk’s earlier barristerial experience, pointed out that:
“Given the significant backlogs in an underfunded justice system, an overstretched publicly funded Bar, and the creaking and, in parts, decrepit, Court estate, it is hard to think of a more difficult time to take office as Lord Chancellor.”
Rape trial reform
The Law Commission has issued a public consultation on sexual offence prosecutions in which it proposes, among other things, strategies to minimise the effects of what have come to be referred to as “rape myths”, and greater judicial oversight of how complainants’ personal data is obtained and used in evidence. There are also proposals to prevent the intrusive and misleading use of sexual behaviour evidence (which often depends on alleged rape myths for its credibility) and even for the use of specialist courts to deal with sexual offences.
The twin aims of the reforms are to protect the right to a fair trial while preventing unnecessary trauma to the complainant. The consultation is open until 29 September 2023 and the Law Commission expects to publish its final report with recommendations in 2024.
The commission was asked to investigate the recent decline in sexual offence prosecutions at a time when the prevalence of the offences has remained steady. This has been attributed in part to the effect of rape myths. These are explained in the consultation as follows:
“Rape myths are genuine and sincere beliefs that are factually incorrect and derived from stereotypes. Despite a myriad of strategies to minimise their effects, evidence shows that myths and misconceptions about rape still contaminate some aspects of the trial process. In our consultation paper, we consider strategies to minimise the effects of these myths.”
Recent academic research suggests that rape myths do not have a significant effect on the conviction rate in trials, if and when they take place. Research by Professor Cheryl Thomas KC (hon), the UK’s leading academic expert on juries, suggests that widespread belief by juries in rape myths is itself a myth and that the jury conviction rate for rape is increasing alongside an increase in jury verdicts in rape cases. (See also: CPS publishes latest statistics on all crime types showing steady increase in rape convictions)
The problem is that cases may not be reaching court, and that may be in part because of the effect of rape myths on the willingness of complainants to go through with the investigation and trial process.
Academic research published last year suggests that “In England and Wales, more than 99% of rapes reported to police do not end in a conviction.” See: New scorecards show under 1% of reported rapes lead to conviction — criminologist explains why England’s justice system continues to fail, By Dr Katrin Hohl, Reader in Criminology, City Law School.
All this is discussed in more detail by Joshua Rozenberg, on A Lawyer Writes: Reforming rape trials
Other recent items
The House of Lords Constitution Committee Reports on the Illegal Migration Bill
Stephen Tierney and Alison L. Young via the UK Constitutional Law Association blog comment on the recent report by the Constitution Committee on the Illegal Migration Bill 2022–23. The Committee raises a number of concerns, they say, including the Bill’s potential impact on the rule of law, human rights, devolution, delegated powers, and parliamentary scrutiny.
Reversing Parliamentary Defeat by Delegated Legislation: The Case of the Public Order Act 1986 (Serious Disruption to the Life of the Community)
Also on the UK Constitutional Law Association blog, Tom Hickman KC and Gabriel Tan discuss the recent report of the House of Lords Secondary Legislation Scrutiny Committee (“SLSC”) that drew attention to a constitutional issue of considerable interest and novelty. It noted that draft regulations will, if they come into effect, allow police in England and Wales to impose restrictions on protests and processions that cause “more than minor” hindrance to day-to-day activities for other people, including going to and fro on the highway (The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023).
Should governments ban TikTok? Can they?
A cybersecurity expert, Doug Jacobson, Professor of Electrical and Computer Engineering, Iowa State University, explains the risks the app poses and the challenges to blocking it, in an article reproduced on Inforrm’s blog.
AI is already being used in the legal system: we need to pay more attention to how we use it
Morgiane Noel, on Inforrm’s blog, explains some of the dangers of over-reliance on law tech.
Media Law Research and AI: Take Care!
Also on Inforrm’s blog, another minatory article about the plausible lure of generative AI: “We thought we would run a simple media law inquiry over three different AI chatbots: ChatGPT, Google Bard and Bing AI. “What are the most important media law cases in England and Wales in the past 20 years?” The results were interesting.” Indeed they were. But not necessarily genuine.
Government response to IICSA’s Final Report
Frank Cranmer on the Law & Religion UK blog discusses the Government’s response to the final report of the Independent Investigation into Child Sexual Abuse, including its acceptance of the need to address most of the recommendations in the report, and the redress scheme for survivors being set up by the Home Office.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
COMPANY — Reorganisation of debt — Company in financial difficulties: In re Great Annual Savings Co Ltd, 16 May 2023  EWHC 1141 (Ch);  WLR(D) 232, Ch D
CONTEMPT OF COURT — Committal application — Family proceedings: EBK v DLO, 05 May 2023  EWHC 1074 (Fam);  WLR(D) 218, Fam D
DATA PROTECTION — Personal data — Access to: FF v Österreichische Datenschutzbehörde, 04 May 2023 (Case C-487/21); EU:C:2023:369;  WLR(D) 226, ECJ
EMPLOYMENT — Contract of employment — Variation of terms — Incorporation of terms: Cox v Secretary of State for the Home Department, 19 May 2023  EWCA Civ 551;  WLR(D) 230, CA
HOUSING — Housing allocation policy — Local authority’s allocation criteria: R (Jaberi) v Westminster City Council, 04 May 2023  EWHC 1045 (Admin);  WLR(D) 213, KBD
INJUNCTION — Interim — Persons unknown: Shell UK Ltd v Persons Unknown (Shell International Petroleum Ltd v Persons Unknown, Shell UK Oil Products Ltd v Persons Unknown), 23 May 2023  EWHC 1229 (KB);  WLR(D) 233, KBD
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Out-Law: High Court decision clarifies limits of Bankers Trust disclosure orders: Scenna v Persons Unknown Using the Identity “Nancy Chen”  EWHC 799 (Ch), Ch D
Out-Law: Representative claim against Google and DeepMind dismissed by High Court: Prismall v Google UK Ltd  EWHC 1169 (KB), KBD
RPC Perspectives: Tribunal confirms that HMRC may open an enquiry into a protective SDLT return: Redmount Trust Company Limited v The Commissioners for HMRC  UKUT 68 (TCC), UT
Local Government Lawyer: Court of Appeal finds Ombudsman decision to withdraw report was unlawful, but dismisses appeal by developer: R (Piffs Elm Ltd) v Commission for Local Administration in England  EWCA Civ 486;  WLR(D) 212, CA
Law & Religion UK: Is “ethnocentric nationalism” protected by s.10 of the Equality Act?: Cave v The Open University  UKET 3313198/2020, ET
Nearly Legal: Mental Health Crisis Moratoriums — issues for debt advisors to consider? Kaye v Lees  EWHC 758 (KB);  WLR(D) 187, KBD
Law & Religion UK: Humanism and religious education in schools: the landmark case of Bowen: R (Bowen) v Kent County Council  EWHC 1261 (Admin), KBD
Tweet of the week
in which barrister Jim Robottom pinpoints the ultimate goal of law tech:
It will be called ChatKC, perhaps.
That’s all for now. Shorter than usual because we’re travelling. Thanks for reading, and thanks for all your toots, tweets, posts and links.
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.