Weekly Notes: legal news from ICLR, 6 February 2023
This week’s roundup of legal news includes treason, threats to public interest journalism, and artificial intelligence, as well as recent case law and commentary.
Trick or treason
Last week a man pleaded guilty to an offence under the Treason Act 1842 having been arrested in the grounds of Windsor Castle on Christmas Day 2021, armed with a crossbow and telling a protection officer “I am here to kill the Queen”.
According to the BBC, Jaswant Singh Chail was wearing a hood and a mask and claimed to be taking revenge for a massacre perpetrated by British troops in the city of Amritsar in India in 1919. He appeared in court by remote link from the high-security psychiatric hospital at Broadmoor, but was deemed fit to plead at the time of the hearing. He will be sentenced next month.
Under section 2 of the 1842 Act it is a “high misdemeanour” carrying a sentence of up to seven years imprisonment (formerly transportation) for any person to
“wilfully discharge or attempt to discharge, or point, aim, or present at or near to the person of the Queen, any gun, pistol, or any other description of fire-arms or of other arms whatsoever, whether the same shall or shall not contain any explosive or destructive material…”
The last person to be convicted under that Act was Marcus Sarjeant, who was jailed for five years in 1981 after having fired blank shots at the Queen while she was riding down The Mall in London during the Trooping the Colour parade. The 1842 Act appears to have been drafted in response to similar armed threats to the young Queen Victoria, the nature of which did not justify the use of the more draconian Treason Act of 1351.
The 1351 Act was last used in 1946 to obtain a conviction against William Joyce, also known as Lord Haw-Haw, who had collaborated with Nazi Germany during the Second World War.
Last year there was a proposal put forward by the MPs Tom Tugendhat and Khalid Mahmood, Professor Richard Ekins (Head of Policy Exchange’s Judicial Power Project) and Patrick Hennessey, a barrister and former army officer, in a paper entitled Aiding the Enemy: How and why to restore the law of treason (Policy Exchange). It argued for a new, modern definition of treason, better calculated to deal with terrorists and fifth-columnists and less focused on protecting the person of the monarch. They said:
“However, the UK’s law of treason is ancient law and is now unworkable. The Treason Act 1351 has been overtaken by changes in modern social and political conditions; it is not a secure ground on which to mount prosecutions. It stands in contrast to the law in other common law jurisdictions. The UK needs to update its laws to make clear that the underlying ethos has not changed — betrayal is a specific crime against society and one that deserves punishment. At a minimum, Parliament should reform our law to follow Australia and New Zealand and thus make it clear that it is unlawful to aid the enemy either in an international armed conflict or in a non-international armed conflict.”
The conviction last week of Jaswant Singh Chail perhaps indicates that the law is not quite as antiquated and unworkable as the Policy Exchangers suggest, though to be fair his weapon of choice was decidedly medieval. Moreover, Lord Haw-Haw’s offence was more or less exactly that of “aiding the enemy” rather than threatening the person of the monarch.
Be that as it may, their proposal did not find favour with the legal policy establishment, as Joshua Rozenberg explained in a blog post last month: Tugendhat’s treason try trounced.
The Lord Chancellor Dominic Raab MP has sensibly suggested that the Law Commission, which last considered the matter in 1977, should take another look at treason before any reforms are introduced. In any case, there are plenty of other laws dealing with terrorism, cyber attacks etc. And the 1351 Act was good enough to be used against other collaborators as well as Lord Haw-Haw after the Second World War, including the Colditz traitor Walter Purdy, as Robert Verkaik recalled in The Times: Resist knee-jerk reform of ancient treason act. It may not have been used for more than 75 years since then, but its more modern extension from 1842 seems to be working as intended.
There has been further interest in the abusive practice of using litigation or the threat of litigation to silence legitimate investigation and reporting by journalists and others, known as SLAPP (strategic litigation against public participation). At the end of last month, following an evidence session with Paul Philip, CEO of the Solicitors Regulation Authority on 24 January 2023, the Communications and Digital Committee wrote a letter to the Ministry of Justice, HM Treasury and DCMS calling for action to tackle the use of SLAPPs. The Committee called for more action by the SRA and others to tackle SLAPPs and an increase in its powers to fine firms who abused them, from £25,000 to £250 million, in line with its fining powers for other issues.
It also suggested closing money laundering loopholes which currently have limited application to the payment for legal advice. The committee noted this was “ironic” as money laundering is itself often a subject of investigative journalism, and the illegitimate funding could be used to pay law firms to silence journalists’ investigations into such activities.
Despite promises to do so, the government has yet to put forward a legislative solution to the problem of SLAPPs. But a Conservative MP, Bob Seely, has put forward a private members’ Bill aimed at tackling the problem, which he described in a speech to the House of Commons as “legal gangsterism”, and complained about the “conniving silence of the Bar Council, the Law Society and the Solicitors Regulation Authority, which seems to spend very little time regulating”.
He named a number of firms and their sometimes unattractive clients. But he also pointed out that not all investigative activity is necessarily beneficial or in the public interest, noting that “cyber hack-for-hire gangs, often instructed by private investigators linked to law firms, targeted businesses, Government officials and journalists”.
Following the sacking last week of Nadhim Zahawi MP for breach of the ministerial code, it emerged that he had caused his solicitors to write threatening letters to dissuade Dan Neidle, of the Tax Policy Associates blog, from investigating his tax affairs. Neidle subsequently reported the lawyers to the SRA for, inter alia, seeking to intimidate him by making baseless allegations of libel in correspondence labelled “without prejudice” (which Neidle then published). For more on this see:
- David Allen Green, The Law and Policy Blog: Nadhim Zahawi, his lawyers, and a blogger
- Richard Moorhead, Lawyer Watch: What may Zahawi’s lawyers have got wrong?
- Graham Reid and Charlotte Thompson, RPC Perspectives: SLAPPs — a round up of the latest developments for the SRA
The use of AI in lawtech is now uncontroversial, and even a stuffy old outfit such as ICLR (founded in 1865) is using it to power its Case Genie search tool. (Yes really. Check it out.) But it’s one thing for AI to be powering boring old contract compliance or e-discovery; it’s quite another for it to be actually giving advice. That seems to be risky, especially given the very plausible responsiveness of OpenAI’s beta project, ChatGPT.
Last month, Legal Cheek asked ChatGPT to write a poem about life as a law student. The result was, shall we say, authentically bad. And ungrammatical, which suggests that ChatGPT is more like a parrot, repeating nonsense, and less like a wise old owl, thinking for itself. The lines
“A law student’s life is not for the faint /
With case law to read and briefs to paint”
are not only doggerel but don’t even make sense (faint what? and whoever paints their briefs?) But lower down it says
“We pour over statutes, late into the night, /
Hoping to find the evidence that’s right.”
Let’s assume they meant “pore” over statutes, and not some weird frat ritual of emptying champagne (or beer, Scotus, or beer…) over the text; that still leaves the questionable idea of finding evidence in legislation rather than in, say, documentary disclosures or witness statements. Anyone hoping to get ChatGPT to write some lines to woo their beloved on St Valentine’s Day next week should perhaps think again.
ChatGPT may not be ready for its day in court, according to Law.com, but this month a rather longer established (and award-winning) legal AI, DoNotPay, will be giving a defendant live advice to fight a speeding case in a US court. According to New Scientist, it will
“tell a defendant exactly what to say and when during an entire court case. … The AI will run on a smartphone and listen to all speech in the courtroom in February before instructing the defendant on what to say via an earpiece.”
Assuming DoNotPay (billed as “the world’s first robot lawyer”) does not hold a practising certificate or membership of the local Bar, one assumes its participation is being permitted along much the same lines as a McKenzie (Litigation) Friend, ie at the discretion of the court. If it helps make litigants in person feel more empowered, maybe that’s a good thing. Whether its advocacy will sway the judge or jury is another matter. We await the verdict with interest.
Other recent items
- Anonymity in CJEU cases: the Court changes its approach — Peter Oliver, via Inforrm’s blog, explains the new approach (whereby the names of national persons in new preliminary references would no longer be composed of initials, but of fictional names, made up by a bot, which will not in principle be existing names) and how it will work.
- Time to rethink the Serious Fraud Office? Joshua Rozenberg, in a post last month on A Lawyer Writes, discusses the recent woes of the SFO, as described by Clare Montgomery KC in an episode of the podcast Double Jeopardy.
- Marriage and Civil Partnerships: Minimum Age, England and Wales — David Pocklington on the Law & Religion UK blog provides an update on the latest legislation on marriage which recently came into force.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CONTRACT — Formation — Implied term: Barton v Gwyn-Jones, 25 Jan 2023  UKSC 3;  WLR(D) 45, SC(E)
CRIME — Sexual offences — Gross indecency: R v Holmes (Peter), 31 Jan 2023  EWCA Crim 58;  WLR(D) 54, CA
HIGH COURT — Forced marriage protection orders — Power to make orders: P v Q, 02 Feb 2023  EWHC 195 (Fam);  WLR(D) 64, Fam D
LANDLORD AND TENANT — Assured shorthold tenancy — Statutory periodic tenancy: Mooney v Whiteland, 01 Feb 2023  EWCA Civ 67;  WLR(D) 61, CA
LICENSING — Premises licence — Revocation of licence: Porky Pint Ltd v Stockton-on-Tees Borough Council, 27 Jan 2023  EWHC 128 (Admin);  WLR(D) 60, QBD
NUISANCE — Cause of action — Visual intrusion: Fearn v Board of Trustees of the Tate Gallery, 01 Feb 2023  UKSC 4;  WLR(D) 53, SC(E)
PLANNING — Development — Sustainable development: R (Bristol Airport Action Network Co-ordinating Committee) v Secretary of State for Levelling Up, Housing and Communities, 31 Jan 2023  EWHC 171 (Admin);  WLR(D) 55, KBD
POLICE — Complaint — Investigation: R (Philpot) v Comr of Police of the Metropolis, 31 Jan 2023  EWCA Civ 66;  WLR(D) 51, CA
PRACTICE — Claim form — Service out of jurisdiction: Tulip Trading Ltd v Bitcoin Association for BSV, 03 Feb 2023  EWCA Civ 83;  WLR(D) 62, CA
PUBLIC PROCUREMENT — Contract awards procedure — Grounds for excluding economic operators from participation: HSC Baltic UAB v Vilniaus miesto savivaldybės administracija, 26 Jan 2023 (Case C-682/21); EU:C:2023:48;  WLR(D) 58, ECJ
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Open Justice Court of Protection Project: ‘Vindicated!’ The experience of P in the Court of Protection: NHS Surrey Heartlands Integrated Care Board v JH  EWCOP 2, Ct of Protection
Local Government Lawyer: Judge finds threshold met on facts before the Court despite all parties considering it was not: West Sussex County Council v K  EWFC 170, Fam Ct
Mental Capacity Law and Policy: Is depriving a person of their mobile phone depriving them of their liberty? MacDonald J decides: Manchester City Council v CP & Ors  EWHC 133 (Fam), Fam D
A Lawyer Writes: MI5 and Home Office acted unlawfully: Liberty v Security Service  UKIPTrib 1, IPT
RPC Perspectives: High Court rejects Group Litigation Order in FSMA litigation as it would not further the Overriding Objective: Moon v Link Fund Solutions  EWHC 3344 (Ch), Ch D
RPC Perspectives: Court of Appeal rejects timing and informed consent defences in bond bribery case: Trafalgar Multi Asset Trading Co Ltd v Hadley  EWCA Civ 1639, CA
Local Government Lawyer: Rights of excusal from relationships and sexuality education: R (Isherwood) v Welsh Ministers  EWHC 3331 (Admin);  WLR(D) 26, QBD
Law & Religion UK: Is there a right to same-sex marriage under the ECHR? Fedotova and others v Russia (Application nos. 40792/10, 30538/14, 43439/14), ECtHR
Nearly Legal: Unravelling a mental health moratorium: Kaye v Lees  EWHC 152 (KB), KBD
Family Law Week: K v K — a retreat from progress in the family courts? In re K (Children) (Practice Note)  EWCA Civ 468;  1 WLR 3713;  1 All ER 348;  2 FLR 1064;  WLR(D) 175, CA
Civil Litigation Brief: ”Interrogation” of a draft judgment is excessive: Re C & Ors (Care Proceedings: Fact Finding)  EWCA Civ 38, CA
Legal Futures: Court can enter judgment in favour of sanctioned Russian party: PJSC National Bank Trust & Anor v Boris Mints  EWHC 118 (Comm), KBD
UK Supreme Court Blog: Case Comment: McCue v Glasgow City Council  UKSC 1;  WLR(D) 20, SC(Sc)
Free Movement: High Court finds no legitimate expectation of equal treatment in Afghanistan evacuation case: R (KBL) v Secretary of State for the Home Department  EWHC 87 (Admin), QBD (Lang J)
Dates & Deadlines
The DSC essay-writing competition
Doughty Street Chambers: Deadline 31 March 2023
DSC hold an annual essay writing competition aimed at young people, inside or outside of formal education, aged between 16-18. The topics selected are in the spirit of DSC’s ethos and commitment to human rights and civil liberties, challenge conventional thinking related to a career at the Bar and drive aspiration. The 2022-23 competition is now OPEN! This year's essay question is as follows:
The use of AI can disproportionately negatively affect marginalised groups in our society. Is there any benefit to using AI in our legal system?
This year the judges are: Nani Jansen Raventlow, Allan John McCay, Kay Firth-Butterfield, Susie Alegre, Abir Ghattas, Sarah Chander, and Minesh Tanna. To submit your application for the competition, please click here.
A topical ‘tweet of the week’ for feline fans,
Thanks for reading, and thanks for all your toots, tweets, posts and links. Take care now.
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.