Category: Technology


Court of Appeal upholds 7 of 10 riot sentences, including Facebook cases – Obiter J

18 October 2011 by

R v Blackshaw and others [2011] EWCA Crim 2312 – Read judgments / press summary

The Court of Appeal (Criminal Division) has issued judgment in relation to ten appeals against sentences imposed for convictions arising from the August disorder.

On 20th August, in a post related to the August disorder, Law and Lawyers looked at relevant sentencing principles and also at the views arrived at by the Crown Court judiciary in Manchester. It was clear, even at that stage, that the context of widespread disorder would be seen as a serious aggravation of offences such as burglary, theft and handling stolen goods. The 20th August post commented that – “It must be doubtful whether the Court of Appeal would adopt a substantially different viewpoint” to that of the Manchester judiciary.

This has proved to be the case though the Court of Appeal said that it is inappropriate for Crown Court judges to “issue, or appear to be issuing, sentencing guidelines.” That is a task for
the Court of Appeal and the Sentencing Council – and the court and council have a relationship of “mutual respect and comity.”

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Home Office policy on forced marriage violates Article 8 family life

13 October 2011 by

R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45 – read judgment.

The Supreme Court has ruled that the Home Secretary’s refusal to grant visas to non-resident spouses under a certain age breached their right to family life under Article 8 of the Convention. A strong dissent from Lord Brown touches on the raw nerve of judicial competence and the role of Article 8 in policy making.  

The Supreme Court press summary sets out the factual details of the two cases. Essentially, the issue  was whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in Paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages, or at least those associated with assisting a claim for UK residency and citizenship. The minimum age requirement – recently raised from 18 to 21 – was designed to prevent young women who have UK citizenship or residence permission from being pressurised into sponsoring a fiancée or spouse seeking admission to this country. 
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Don’t throw the BAILII out with the bath water

26 September 2011 by

The Guardian published an editorial today arguing that court judgments should be opened up to the public. The editorial challenges the fact that BAILII, the charity which currently publishes most judgments online, is not searchable on Google.

Broadly speaking, it is good to see The Guardian taking up this somewhat esoteric but important topic. As I have argued on a number of occasions (see e.g. Making Law Accessible to the Public) the Ministry of Justice needs to do more to make “raw” law, that is judgments and legislation, accessible online. But it is important to focus on the right issues.

Case law should, ideally, be searchable on Google. BAILII explains the reason for not making it so:

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The revolution will be televised

7 September 2011 by

The Justice Secretary Ken Clarke has announced that the ban on broadcasting in courts is to be lifted. Broadcasting will initially be allowed from the Court of Appeal, and the Government will “look to expand” to the Crown Court later. All changes “will be worked out in close consultation with the judiciary“.

Broadcasting in court is currently prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. However, the rules do not apply to the Supreme Court, the UK’s highest court of appeal. Since it launched in October 2009, the court has been filming hearings and making the footage available to broadcasters. And, since May of this year, the court has been streaming the footage live on the Sky News website.

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Full internet ban for sex offenders ruled unlawful

12 August 2011 by

Regina v Smith & Others [2011] EWCA Crim 1772  Read Judgment

UPDATED NOVEMBER 2013 | In a detailed judgment, the Court of Appeal has emphasised the importance of a sentencing court considering whether making a Sexual Offences Prevention Order is necessary and, if so, tightly drafting its terms to be proportionate and not oppressive. 

The Court of Appeal (Criminal Division) also made clear that a total ban on internet use would always be disproportionate. It considered four cases in which the terms of the Sexual Offences Prevention Order  [‘SOPO’] were challenged by the Appellants, none of whom had been charged with offences involving physical sexual contact.

The powers of the Court in relation to SOPOs are contained in ss. 104 -113 of the Sexual Offences Act 2003 [‘SOA 2003’].   A SOPO contains specific prohibitions designed to protect the public from serious sexual harm and remains in effect for the period specified in the order.  The order prohibits the offender from doing anything contained in the order and accordingly they contain only restrictions, but no affirmative duties.   Breach of any of the restrictions is a criminal offence carrying up to five years’ imprisonment and a SOPO may be in place for many years.  As such, a SOPO could have a draconian effect on an offender for a substantial period of time.

Principles

When may a Court grant a SOPO?

The Court noted that whist a SOPO was a valuable tool in the control of sexual offending, as had been noted in R v R & C [2010] EWCA Crim 907, they were often too hastily and inadequately drafted and provided at a late stage in the sentencing process.    Whilst the SOPO offered a flexibility in drafting, the court warned that:

The flexibility of the order, however, must not lead draftsmen to an inventiveness which stores up trouble for the future. It will do this if it creates a provision which is, or will become unworkable.That may be because it is too vague or because it potentially conflicts with other rules applicable to the defendant, or simply because it imposes an impermissible level of restriction on the ordinary activities of life. The SOPO must meet the twin tests of necessity and clarity. The test of necessity brings with it the subtest of proportionality.”

The Court reminded future sentencing courts that an SOPO may only be made under section 104(1) if the court is:

…satisfied that it is necessary to make such an order for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.”

Serious sexual harm differs from sexual harm so a SOPO may not be used to prohibit unusual, or even socially unacceptable, sexual behaviour unless it is likely to lead to the commission of offences set out in Schedule 3 of SOA.  The risk of such serious sexual harm must real and not remote.

Further, clarity is important, not only for the offender but also for those who must deal with him in real life and those who must enforce the Order and to avoid the real risk of unintentional breach.

What must a Court consider when making a SOPO?

The Court reiterated that the three questions identified by the Court of Appeal in  R v Mortimer [2010] EWCA Crim 1303 must be addressed when making a SOPO:

  1. Is the making of an order necessary to protect from serious sexual harm through the commission of scheduled offences ?
  2. If some order is necessary, are the terms proposed nevertheless oppressive?
  3. Overall are the terms proportionate?

Interaction with other sentencing regimes:

The Court also reminded sentencing courts that when considering the imposition of SOPOs,  a defendant convicted of sexual offences is likely to be subject to at least three other relevant regimes. The statutory test of necessity is not met if a SOPO merely duplicates such a regime. A SOPO must not interfere with such a regime. The following regimes must be considered:

  1. The sex offender notification rules;
  2. Disqualification from working with children; and
  3. Licence on release from prison.

Additionally, the Court considered that the usual rule ought to be that an indeterminate sentence needs no SOPO, at least unless there is some very unusual feature which means that such an order could add something useful and did not run the risk of undesirably tying the hands of the offender managers later.  The prevention of further offences should be left to the fixing of licence conditions as part of the indefinite sentence.

Further, it would not normally be a proper use of the power to impose a SOPO to use it to extend notification requirements beyond the period prescribed by S.82 of SOA 2003.  It does not follow, however, that the duration of a SOPO ought generally to be the same as the duration of notification requirements. Although the SOPO must operate in tandem, notification requirements and the conditions of a SOPO are different. The first require positive action by the defendant, who must report his movements to the police. The second prohibit him from doing specified things. Ordinarily there ought to be little or no overlap between them.  There is therefore no objection for an SOPO to extend beyond the notification requirements and it is also permissible in law for the SOPO to run for less than an indefinite period even when the notification requirements endure forever.

Extent of the SOPO:  Computer Use and Internet Access

The court considered the difficult question of limiting access to computer use in light of the “explosion of everyday internet use by a very large proportion of the public”.   The Court noted that a blanket ban on internet access was impermissible as:

It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of everyday living for a large proportion of the public, as well as a requirement of much employment. Before the creation of the internet, if a defendant kept books of pictures of child pornography it would not have occurred to anyone to ban him from possession of all printed material. The internet is a modern equivalent.”

The Court went on to consider the formula in  R v Hemsley [2010] EWCA Crim 225, which restricts internet use to “job search, study, work, lawful recreation and purchases”.  It considered that whilst such a formula has its attractions, it suffered from the same flaw, albeit less obviously, because it did not reflect modern internet usage or provide for future technological development:

Even today, the legitimate use of the internet extends beyond these spheres of activity. Such a provision in a SOPO would, it seems, prevent a defendant from looking up the weather forecast, from planning a journey by accessing a map, from reading the news, from sending the electricity board his meter reading, from conducting his banking across the web unless paying charges for his account, and indeed from sending or receiving Email via the web, at least unless a strained meaning is given to ‘lawful recreation’. The difficulties of defining the limits of that last expression seem to us another reason for avoiding this formulation. More, the speed of expansion of applications of the internet is such that it is simply impossible to predict what developments there will be within the foreseeable lifespan of a great many SOPOs, which would unexpectedly and unnecessarily, and therefore wrongly, be found to be prohibited.

Some courts have been attracted to a prohibition upon the possession of any computer or other device giving access to the internet without notification to the local police. Most defendants, like most people generally, will have some devices with internet access, so such a requirement woud be both onerous and add little of any value.

There is no need for the SOPO to invest the police with powers of forcible entry into private premises beyond their statutory powers.

The court considered that of all the formulas so far devised:

the one which seems to us most likely to be effective is the one requiring the preservation of readable internet history coupled with submission to inspection on request… if the defendant were to deny the officers sight of his computer, either in his home or by surrendering it to them, he would be in breach.

Where the risk is not simply of downloading pornography but consists of or includes the use of chatlines or similar networks to groom young people for sexual purposes, it may well be appropriate to include a prohibition on communicating via the internet with any young person known or believed to be under the age of 16 … it may be necessary to prohibit altogether the use of social networking sites or other forms of chatline or chatroom.”

Extent of the SOPO:  Personal Contact with Children

The Court considered that care must be taken in considering whether prohibitions on contact with children are “really necessary”.

The Court noted that any provision must be tailored to the necessity of preventing sexual offending causing serious harm to others.  The majority of such offences occur only when a child is under the age of 16 so, generally, a SOPO should only relate to contact with children under that age.  Only if there was a genuine risk of offences under ss 16-19 of SOA 2003where a defendant stands in a position of trust or family offences under ss 25 – 26 of SOA 2003, would prohibitions on contact with children under the age of 18 be justified.

In cases where it is “really necessary” to impose a prohibition on contact with children (of whichever age,  it is essential to include a saving for incidental contact such as is inherent in everyday life.

Further, if there was no risk that offences within a family may be committed then

it is both unnecessary and an infringement of the children’s entitlement to family life to impose restrictions which extend to them. Even if there is a history of abuse within the family, any order ought ordinarily to be subject to any order made in family proceedings for the very good reason that part of the family court process may, if it is justified, involve carefully supervised rehabilitation of parent and child”

SOPOs which prohibit the defendant from activities which are likely to bring him into contact with children must be justified as required beyond the restrictions placed upon the defendant by the Independent Safeguarding Authority under the Safeguarding Vulnerable Groups Act 2006.

Procedure:

Procedurally,  it is essential that there is a written draft of the SOPO that can be properly considered in advance of the sentencing hearing. The normal requirement should be that it is served on the court and on the defendant before such a hearing and the Court suggested not less than two clear days before but in any event not at the hearing.

Applying the principles

The Court went on to consider the application of these principles in respect of the four appellants.

In respect of Wayne Clarke, the Court substituted a new indefinite SOPO which removed the blanket ban in internet use, the notification requirements, which prohibited social contact with boys when his offences had been entirely against girls and removed the prohibition of touching underage children as such an act would, in any event, be an offence.

In respect of Bryan Hall, the restriction on living with ‘any person under the age of 18′ was moderated to ‘any female under the age of 18 unless with the express approval of Social Services for the area’; the restriction on any unsupervised contact with a person under the age of 18 was moderated to “any female under the age of 18″ such as is “inadvertent and not reasonably avoidable in the course of lawful daily life or with the consent of the child’s parent or guardian (who has knowledge of his convictions) and with the express approval of the Social Services for the area’.  The restriction of being in possession of a computer/i-phone or mobile without notifying the monitoring police was removed.

In respect of Steven Smith, the SOPO was quashed as he was given an indeterminate sentence for public protection.  Consequently,  those considering his case would remain responsible for the terms and conditions under which he lives, there is nothing useful to which a SOPO could add.

In respect of the 4th Appellant [UPDATE, January 2014 – his conviction was quashed in March 2013] , although the criminal activity for which he was convicted was “as about as low a level as it is possible to encounter in an offence for child pornography”,a SOPO was found to be necessary due to the appellant’s admitted strong sexual attraction to boys in the age range of 10 -15. The court admired the effort of the judge at first instance in attempting to render the internet provisions workable.  However, as that appellant’s life “revolved around the use of computers and the internet” the terms of the SOPO were too widely drawn and “an order requiring a readable history and submission to inspection will better protect against the risk”.

Comment

It is clear those drafting SOPOs in future will need to look very closely at the nature and circumstances of the offences with which the defendant is charged and convicted – for example, the gender of the victims or potential victims of the offender and the risk of progression from viewing offences to contact offences.  SOPOs will need to be tightly drafted after considerable thought.

Questions arise, however, regarding the Court’s rejection of the Hemsley formula.  It is not, for instance, clear why “checking the weather forecast … planning a journey by accessing a map … reading the news … sending the electricity board his meter reading … conducting his banking across the web unless paying charges for his account, and indeed from sending or receiving Email via the web” cannot amount to ‘lawful recreation‘ without  strained construction of the phrase.

It is difficult to see how, when recordable internet histories can be turned on and off for short periods of time using ‘private browsing’ facilities, the terms of the Court’s proposed term that “an order requiring a readable history” can be effectively policed.   The proposed terms do not seem to prevent an offender from using a device belonging to another person (or in an internet cafe), provided it has the capacity to retain and display an internet history.  Locating such a device would be a further barrier for any police investigation.  Additionally, although the SOPO made by the Court prevents the offender “deleting such history”, it is not clear that the offender would be in breach of the SOPO if another person deleted the history.

Although this was a comprehensive review by the Court, it may be that further consideration of the terms of SOPOs, particularly in regard to internet usage, becomes necessary.

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Facebook contempt trial begins tomorrow

13 June 2011 by

Tomorrow sees the beginning of a contempt of court prosecution against a juror who allegedly communicated on the social networking site Facebook with a defendant who had already been acquitted.

The co-editor of this blog, Angus McCullough QC, is representing the Attorney General in the case; he is not the writer of this post. Isabel McArdle has already posted on the case – for background, see Silence please: A Facebook contempt of court – allegedly.

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Must lawyers blog and tweet?

24 May 2011 by

Lots of lawyers are blogging and tweeting. Should they be?

I spoke last Thursday at the second #lawblogs event, kindly hosted in the grand (not to mention establishment) surrounding of The Law Society. The event was attended by around 75 people, most of whom had a passion for legal blogging and tweeting. You can read the Twitter feed of the event here, or reviews by James Wilson, Mike Scutt, James Dean of The Times (paywall) and The Guardian’s Siobhain Butterworth .

One issue which I tried to explore was the professional ethics of lawyers blogging and tweeting. There are a number of questions which lawyers could, and probably should, ask themselves before making their social media debut . Is it right for lawyers to comment publicly on the law? What about on their own cases? And might there be a positive ethical duty to explain the law to the general public?

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Victory! UK Supreme Court hearings to be streamed live

16 May 2011 by

That was quick! The Supreme Court appear to have responded to the request I made on Thursday that hearings be broadcast live on the internet. From today, Sky News will be broadcasting all hearings live via this website.

All hearings at the court are filmed, but until now only broadcasters had been able to use footage. I first argued in October that this was a waste and the hearings should be live screened. I don’t actually believe that my posts had anything to do with this minor technological miracle, but I have tried it out and it works. This is very exciting. For the first time the general public, lawyers and law students can see the advocacy in the UK’s highest court of appeal live and unedited.

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Show us the Supreme Court footage!

12 May 2011 by

The Director of Public Prosecutions has told the Society of Editors that more court hearings should be televised. The Ministry of Justice have responded by saying that they are considering changes but would want to consult the senior judiciary before making any “firm proposals”. 

Starmer is right to say that “shining a light on the workings of the court room can only serve to boost its efficiency and effectiveness”. But before spending time and money opening up more courts to cameras,  footage from the supreme court, which is already filmed at great expense, should be made more widely available.

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#lawblogs is back on Thursday 19 May – how to sign up

3 May 2011 by

Update – apologies for the earlier confusion. The details below are correct and confirmed.

The second #lawblogs event will be held on 19 May 2011 at 6pm. The Law Society at 113 Chancery Lane have kindly agreed to host the event.

To reserve your place, send an email to lawblogsevent@gmail.com with the subject heading “Legal blogging event” and your full name only in the text. Only one place can be reserved per person. Space is limited so please email as soon as possible if you want to attend. You can also follow updates and live tweets from the event on Twitter via our new account at @legalblogging.

Like the “Future of Legal Blogging“, but on a larger scale, the event will be a panel based discussion of the past, present and future of legal blogging, tweeting and journalism, followed of course by drinks and nibbles. The speakers will be:

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Roll up, roll up!

24 April 2011 by

Someone pointed out to me yesterday that our blog roll, that is our list of links to other sites, had disappeared. To my horror, they were right, and to my double horror, it turned out that the list of links was woefully inadequate. 

So, the much-improved list is back, a bit lower down on the right. And below is a list with some short descriptions of the links. I have tried to limit the list to sites relevant to legal blogging and (to a lesser extent, because there are so many) human rights: for a much better roundup of the state of legal blogging in the UK, please read the almost impossibly comprehensive UK Blawg Roundup #6 by Brian Inkster.

Also, if you think you or someone else should be on this list, please let me know via the contact tab above. And the next #Lawblogs event is on 19 May at 6:30pm at the Law Society – details this week on how to reserve your place.


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A manifesto for 21st century open justice

17 March 2011 by

One of the country’s most senior judges, Lord Neuberger, has given a stirring speech on the challenges of open justice in the 21st century. His ideas are progressive and practical, and amount to a manifesto for building a more open justice system, fit for the internet age.

  The annual Judicial Studies Board lecture has in recent years been used by the senior judiciary to criticise the European Court of Human Rights (see Lord Judge’s and Lord Hoffmann’s 2010 and 2009 speeches), so Neuberger’s Open Justice Unbound represents a refreshing change of pace.
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That was the future of legal blogging

18 February 2011 by

Last night, 35 legal bloggers, tweeters and journalists descended on 1 Crown Office Row chambers to debate the future of legal blogging. Twitter was abuzz with the event, and you can read the tweets even if you are not signed up to a Twitter account.

The panel was made up legal bloggers David Allen Green (Jack of KentNew Statesman), Carl Gardner (Head of Legal) and Adam Wagner (UK Human Rights Blog), and was chaired by Catrin Griffiths, editor of The Lawyer.

The event was a great success. I will write about it in more detail soon, as I hope will others. The one and a half hour discussion was always interesting and animated, and continued in earnest over drinks and substantial nibbles afterwards. There was also a complete reversal of the usual protocol that mobile phones should be turned off, and many people tweeted from the event. One of our editors even made a successful eBay bid.

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The coalition’s quiet legal revolution?

16 February 2011 by

Law by crowd

The new Protection of Freedoms Bill has become the first proposed law to be opened to public comments via the internet. This seemingly small technological advance could have very exciting effects.

The comments system works just like a blog post. Any member of the public can leave comments on any particular provision of the draft law. The deadline for comments is 7th March.

The Prime Minister says that the Public Reading Stage, which is touchingly in “beta”, will “improve the level of debate and scrutiny of bills by giving everyone the opportunity to go online and offer their views” on new laws.” “That”, he suggests “means better laws – and more trust in our politics.”

He might just be right.

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Supreme Court welcomes tweeters

3 February 2011 by

Updated | The UK Supreme Court has released guidance on the use of “live text-based communications” from the court. Put simply, tweeting will be allowed in most cases.

The UK’s highest court of appeal has sensibly said that since its cases do not involve interaction with witnesses or jurors, subject to limited exceptions “any member of a legal team or member of the public is free to use text-based communications from court, providing (i) these are silent; and (ii) there is no disruption to the proceedings in court“.

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