English Law Commission Consultation on Contempt of Court

The Law Commission of England has published a consultation paper on the law of contempt of court.

As explained in the summary document:

"The law of contempt is disorganised and, at times, incoherent. It has developed over centuries, but has done so piecemeal, and now comprises an unsystematic amalgam of statute and common law. Historic distinctions persist, such as the distinction between civil and criminal contempt, though with little utility. Indeed, whether classified as criminal or civil, contempt is not a criminal offence at all but is instead a wholly separate regime for safeguarding the administration of justice. The penalties for contempt are generally imprisonment or a fine. Alongside contempt of court are many overlapping criminal offences relating to the administration of justice (such as the offence of perverting the course of justice)."

"Nevertheless, the more fundamental problems with contempt are practical. Many courts and tribunals lack meaningful powers to deal with contempt when it arises. Even when courts do have such powers, the sanctions available to them – as tools either of coercion or punishment – are blunt. The procedures for contempt differ between different courts, and the law governing appeals can be unclear and complex (...)"

"All of these problems mean that it is difficult for laypeople and legal practitioners to identify and understand the relevant law, and for the courts to recognise and respond appropriately to interferences with the administration of justice."

"A clearer and more coherent set of laws and rules governing contempt – addressing liability for contempt, the powers of courts, procedure, and the imposition of sanctions – would help to ensure that this very significant area of law operates in a principled, comprehensible, and effective way."

The Law Commission proposes to do away with centuries-old distinctions between “criminal contempt” and “civil contempt” in favour of a modern, streamlined set of contempt laws.

The Commission proposes that there should be three forms of contempt of court:

• “General contempt”. Examples include abusing court staff or witnesses, disrupting a hearing, or making unauthorised recordings of proceedings.
• “Contempt by breach of court order or undertaking”. Examples include litigants in high value commercial disputes taking assets out of the country in contravention of a “freezing order” requiring them not to do so, or protesters entering on land when an injunction prohibits it.
• “Contempt by publication when proceedings are active”. Examples include media reporting or social media posts that create a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced. For instance, when a publication reveals information that may not be admissible in evidence then it may carry a risk of influencing a jury in a criminal trial.

The Law Commission is an independent body established by statute to make recommendations to Government on improving the law.

The consultation the Commission is running will end November 8, 2024.

English Law Commission Consultation on Digital Assets in Private International Law

The Law Commission in England has launched a short consultation exercise on proposed legislation on digital assets and electronic trade documents.

A summary of the Commission's work on the issue can be found on the project's page:

"The UK Government asked the Law Commission to make recommendations for reform to ensure that the law is capable of accommodating both crypto-tokens and other digital assets in a way which allows the possibilities of this type of technology to flourish."

"In our final report, we conclude that the common law system in England and Wales is well placed to provide a coherent and globally relevant regime for existing and new types of digital asset."

"We conclude that the flexibility of common law allows for the recognition of a distinct category of personal property that can better recognise, accommodate and protect the unique features of certain digital assets (including crypto-tokens and cryptoassets). We recommend legislation to confirm the existence of this category and remove any uncertainty. On 22 February 2024 we published a short consultation on draft clauses which would implement this recommendation."

"To ensure that courts can respond sensitively to the complexity of emerging technology and apply the law to new fact patterns involving that technology, we recommend that Government create a panel of industry experts who can provide guidance on technical and legal issues relating to digital assets."

"We also make recommendations to provide market participants with legal tools that do not yet exist in England and Wales, such as new ways to take security over crypto-tokens and tokenised securities."

New Book Gives Insider's View of Law Reform Commission Work

The Law Commission of England has published a new book, Inside Modern Law Reform, that provides an insider's point of view of the history of the Commission and how it carries out its work to make laws more relevant, modern and fair.

From the brief description on the Commission website:

"As well as describing the history and process of law reform, the book outlines the wide-ranging social and economic benefits it provides, the importance of an independent Law Commission, the unique work it does in Wales, its international relationships, and the opportunities they offer to enrich the Commission’s work."

"While the level of detail provided in the book may be of more interest to those who are already familiar with the work of a law reform body, nonetheless the Commission hopes that the work will be of interest to a more general audience. Above all, the work is aimed at all those who share a concern for good law reform both nationally and internationally."

"The Commission is indebted to the many thousands of individuals and organisations who have contributed so fully and generously to its law reform projects over the decades and from whom it has learned and continues to learn. It is because of these contributions that it has been able to build up the wide-ranging experience of law reform described in this book."

The book is available for free in PDF format.

Law Commission of England Consultation Paper on Evidence in Sexual Assault Trials

The Law Commission of England has released a consultation paper containing a number of proposals to change the way that evidence is used in sexual offences prosecutions in England and Wales.

The gist of the proposals is to counter the effects of rape myths and misconceptions on the trial process, treating complainants humanely, and ensuring that defendants receive a fair trial.

Some of myths and stereotypes surrounding sexual assault are that an assault will always be reported promptly, and/or that victims will be visibly distraught when describing what happened. These myths do not reflect the variety of experiences of and reactions to sexual violence. 

Among the proposals that the Commission has submitted for discussion:

• A bespoke regime for access, disclosure and use of complainants’ personal records, including counselling notes. This regime would include judicial oversight of whether and how these records should be used, considering factors such as the complainant’s right to privacy and the importance of the records to the defendant’s case.
• New framework for restricting the use of evidence of complainants’ sexual behaviour and compensation claims. When deciding whether to admit this type of evidence, the judge would consider factors such as the risk of perpetuating myths and misconceptions and the defendant’s right to a fair trial.
• Giving complainants an automatic entitlement to measures to assist them to give evidence, such as giving evidence over live link, or in private (with an exemption that allows press attendance).
• Independent legal advice and representation for complainants, which would allow them to make informed decisions about the way their evidence is given and used, and to participate in decisions about the use of their sensitive personal information.
• The paper also considers the use of educational tools that could help minimise the impact of rape myths on jury decision-making. These could include, for example, the use of expert evidence to explain the complex physical and psychological responses to sexual violence.

Joint Report by Scottish and English Law Reform Commissions on Surrogacy

The Scottish Law Commission and the Law Commission of England and Wales have published a joint report on surrogacy.

It comes in three parts:

• a Core Report
• a Full Report
• a Draft Surrogacy Bill

Surrogacy is where a woman – the surrogate – bears a child on behalf of someone else or a couple, who intend to become the child’s legal parents.

The main focus of the suggested reforms involves screening before conception, allowing meaningful scrutiny at an early stage by a regulated surrogacy organization, rather than the current law, which only involves scrutiny by the court after the child is born. The reforms would respect the autonomy of the surrogate – if she withdraws her consent, the courts will make the final decision on parental status. 

The recommendations would also ensure that surrogacy remains non-commercial by prohibiting payments to the surrogate for carrying or delivering the child, ensuring that surrogacy agreements remain unenforceable, and requiring surrogacy organizations to operate on a non-profit-making basis.

Law Commission of England Advice Paper to Government on Remote Driving

The Law Commission of England has published advice to the British government on how to properly regulate the emerging sector of remote driving.

Remote driving refers to a situation where a person controls a vehicle using wireless connectivity.

Its potential uses could include delivering rental cars to a customer's door or trials of self-driving vehicles.

In its press release today, the Law Commission explains that its advice covers issues such as:

• Short term measures to address gaps in the law
• Safety requirements for remote driving
• A new regulatory system to govern remote driving over the long term
• Licences for remote driving operations
• A ban on remote driving from overseas
• Criminal and civil liability

English Law Commission Proposals to Ensure UK Remains Centre of International Arbitration

The Law Commission of England and Wales recently released a consultation paper with provisional reform proposals to update the Arbitration Act 1996 and to ensure London remains a world-leading seat in arbitration.

From the description of the project:

"Arbitration is a form of dispute resolution. If two or more parties have a dispute which they cannot resolve themselves, instead of going to court, they might appoint a third person as an arbitrator to resolve the dispute for them by issuing an award. They might appoint a panel of arbitrators to act as an arbitral tribunal."

"Arbitration happens in a wide range of settings, both domestic and international, from family law and rent reviews, through commodity trades and shipping, to international commercial contracts and investor claims against states."

"Arbitration is a major area of activity. For example, the Chartered Institute of Arbitrators, headquartered in London, has more than 17,000 members across 149 countries. Industry estimates suggest that international arbitration has grown by about 26% between 2016 and 2020, with London the world’s most popular seat." 

"The Arbitration Act 1996 (“the Act”) provides a framework for arbitration in England and Wales and Northern Ireland. It has been 25 years since the Act came into force. This anniversary presents a good opportunity to revisit the Act, to ensure that it remains state of the art, so that it provides an excellent basis for domestic arbitration, and continues to support London’s world-leading role in international arbitration."

The consultation paper examines areas such as confidentiality, independence and immunity of arbitrators, jurisdictional challenges against arbitral awards, appeals and more.

English Law Commission Consultation Paper on Digital Assets

The Law Commission of England and Wales has released a consultation paper that looks at proposed changes relating to digital assets such as cryptocurrencies.

From the project description page:

"Digital assets are increasingly important in modern society. They are used for an expanding variety of purposes — including as valuable things in themselves, as a means of payment, or to represent or be linked to other things or rights — and in growing volumes. Electronic signatures, cryptography, smart contracts, distributed ledgers and associated technology broaden the ways in which digital assets can be created, accessed, used and transferred. Such technological development is set only to continue."

"Some digital assets (including crypto-tokens and cryptoassets) are treated as objects of property by market participants. Property and property rights are vital to modern social, economic and legal systems and should be recognised and protected as such. While the law of England and Wales is flexible enough to accommodate digital assets, our consultation paper argues that certain aspects of the law now need reform. This will ensure that digital assets benefit from consistent legal recognition and protection, in a way that acknowledges the nuanced features of those digital assets."

"Reforming the law to provide legal certainty would lay a strong foundation for the development and adoption of digital assets. It would also incentivise the use of English and Welsh law and the jurisdiction of England and Wales in transactions concerning digital assets."

English Law Commission Proposes Overhaul of Outdated Wedding Laws

The Law Commission of England and Wales has released a report recommending many changes to the laws governing the celebration of weddings.

Among other things, it would allow for a much wider range of locations for couples to get married. This would include gardens, beaches, forests, parks, village halls and cruise ships.

The changes would also allow for more personalised vows, rituals and songs chosen. In addition, the recommendations would ensure fairer treatment for all beliefs, removing the anomalies of the current system, where different religions are bound by a multitude of different rules. 

Key parts of English wedding laws date back to 1836 or even earlier. 

The Commission states that the changes proposed would bring England and Wales in line with laws in other places including those  in Scotland, Northern Ireland, Ireland, New Zealand, Canada and Australia.

English Law Commission Options Paper on Corporate Criminal Liability

The Law Commission of England last week published its proposed options for the UK government on how it can ensure that corporations are held accountable for committing serious crimes such as fraud.

The paper is part of a larger review of corporate criminal liability that the Law Commission has been asked to do by the government. 

The paper offers ten reform options:

1. Retain the current general rule of criminal liability applied to corporations – the “identification doctrine” – as it stands.
2. Allow conduct to be attributed to a corporation if a member of its senior management engaged in, consented to, or connived in the offence. This could be drafted so that chief executive officers and chief financial officers are always considered part of senior management.
3. Introduce an offence of failure to prevent fraud by an employee or agent. This would apply when the company has not put appropriate measures in place to prevent their own employees or agents committing a fraud offence for the benefit of the company.
4. Introduce an offence of failure to prevent human rights abuses.
5. Introduce an offence of failure to prevent ill-treatment or neglect.
6. Introduce an offence of failure to prevent computer misuse.
7. Make publicity orders available (requiring the corporate offender to publish details of its conviction) in all cases where a corporation is convicted of an offence.
8. Introduce a regime of administratively imposed monetary penalties.
9. Introduce civil actions in the High Court, with a power to impose monetary penalties.
10. Introduce a reporting requirement requiring large corporations to report on anti-fraud procedures.

The paper compares the situation in the UK with that of Australia and Canada.

It is now for the Government to review and consider the options paper.

English Law Commission Report on Electronic Trade Documents

The Law Commission of England and Wales has published a report on Electronic Trade Documents which it presented to the British House of Commons this week:

"The process of moving goods across borders involves a range of actors including transportation, insurance, finance and logistics service providers. We have estimated that global container shipping generates billions of paper documents a year. Across so many documents, the potential positive impacts of using electronic trade documents – including financial and efficiency gains, and environmental benefits – are vast (...)"

"Despite the size and sophistication of this market, many of its processes, and the laws underlying them, are based on practices developed by merchants hundreds of years ago. In particular, under the current law of England and Wales, being the “holder” or having “possession” of a trade document has special significance. However, the law does not allow an electronic document to be possessed. As a result, nearly all documents used in international trade are still in paper form."

"Over the past decade, the development of technologies such as distributed ledger technology has made trade based on electronic documents increasingly feasible. Without reform, the law will continue to lag behind, hindering the adoption of electronic trade documents and the significant associated benefits from being achieved (...)"

"The recommendations in our report, and the Bill that would implement them, are intended to enable trade documents in electronic form to be used in the same way as their paper counterparts. To achieve this, the Bill sets out certain “gateway criteria” that a document in electronic form must satisfy in order to qualify as an “electronic trade document”. We recommend that electronic trade documents (that is, documents in electronic form which satisfy the gateway criteria) should be capable of being possessed, and that this principle should be set out explicitly in statute."

 

English and Scottish Law Commissions Publish Joint Report on Self-Driving Cars

The Law Commission of England and Wales and the Scottish Law Commission have published a joint report on automated vehicles.

The report into self-driving cars comes after 3 rounds of extensive consultations.

Recommendations cover approval and authorisation of self-driving vehicles, ongoing monitoring of their performance while they are on the road, misleading marketing, and both criminal and civil liability. 

They include:

• Writing the test for self-driving into law, with a bright line distinguishing it from driver support features, a transparent process for setting a safety standard, and new offences to prevent misleading marketing.
• A new in-use safety assurance scheme to provide regulatory oversight of automated vehicles throughout their lifetimes to ensure they continue to be safe and comply with road rules.
• New legal roles for users, manufacturers and service operators, with removal of criminal responsibility for the person in the passenger seat.
• Holding manufacturers and service operators criminally responsible for misrepresentation or non-disclosure of safety-relevant information.

English Law Commission Report on Protecting Victims from Online Abuse

 The Law Commission of England and Wales has published its final report on Modernising Communications Offences.

According to a summary on the Commission website:

"The laws that govern online abusive behaviour are not working as well as they should. The existing offences are ineffective at criminalising genuinely harmful behaviour and in some instances disproportionately interfere with freedom of expression."

"Reliance on vague terms like 'grossly offensive' and 'indecent' sets the threshold for criminality too low and potentially criminalises some forms of free expression that ought to be protected. For example, consensual sexting between adults could be 'indecent', but is not worthy of criminalisation."

"Other behaviours such as taking part in pile-on harassment, which can be genuinely harmful and distressing are not adequately criminalised. Additionally, the law does not effectively deal with behaviours such as cyberflashing and encouraging serious self-harm."

"The result is that the law as it currently stands over-criminalises in some situations and under-criminalises in others. This is what the Commission’s recommendations aim to correct."

"The Commission is recommending a new offence based on likely psychological harm. This will shift the focus away from the content of a communication (and whether it is indecent or grossly offensive) toward its potentially significant harmful effects. "

In November 2018, the Commission had issued a scoping report which, among other things, examined laws governing abusive and offensive communication in Australia, Canada, Ireland, Germany and New Zealand.

English Law Commission Consultation Paper on Electronic Trade Documents

The Law Commission of England and Wales has issued a Consultation Paper on Electronic Trade Documents:

"The process of moving goods across borders in order to get them from the seller to the buyer typically involves a large multiplicity of actors including transportation, insurance, trade and/or supply chain finance and logistics service providers. One transaction typically involves 20 entities and between 10 and 20 paper documents, totalling over 100 pages."

"Despite the size and sophistication of this market, many of its processes, and the laws underlying them, are based on practices developed by merchants hundreds of years ago. In particular, international trade still relies to a large extent on a category of documents called 'documentary intangibles'. Documentary intangibles are unique because transfer of the document can be sufficient to transfer the right to claim performance of the obligation which the document embodies, whether that is an obligation to pay money or an obligation to deliver goods. For example, simply handing over a bill of lading can be sufficient to give the new holder a right to the goods described in the bill."

"The legal rules governing these documents are premised on the idea that they are physical documents which can be physically held or 'possessed'. The current law in England and Wales does not recognise the possibility of possessing electronic documents; possession is associated only with tangible assets. Industries using these documents are therefore prevented by law from moving to a fully paperless process. To give a sense of the enormous amount of paperwork global trade generates, consider that the world’s largest containerships can carry 24,000 twentyfoot containers at any one time on any one voyage. For each one of those cargoes a paper transport document is issued, and has to be processed manually to go from the shipper of the goods to the ultimate buyer at destination, sometimes through numerous intermediaries. This needs to be done using paper because the buyer is required to present the paper document when claiming the goods at the port of discharge. It has been estimated that the international trade industry generates four billion paper documents per year."

(...)

"In this consultation paper, we set out provisional proposals for law reform to allow for electronic trade documents to have the same legal effects as their paper equivalents, provided that they meet certain requirements to enable their possession in a digital context."

The consultation closes on 30 July 2021. 

English Law Commission Consultation on Harmful Online Behaviour

 The Law Commission of England is holding consultations on what it calls the Reform of the Communications Offences:

"Reform of the law is needed to protect victims from harmful online behaviour including abusive messages, cyber-flashing, pile-on harassment, and the malicious sharing of information known to be false. The Law Commission is consulting on proposals to improve the protection afforded to victims by the criminal law, while at the same time provide better safeguards for freedom of expression. We launched our consultation paper on 11 September 2020, and the consultation period will run until 18 December 2020."

In its consultation paper, the Commission makes a number of proposals:

"The proposals include:

• A new offence to replace the communications offences (the Malicious Communications Act 1988 (MCA 1988) and the Communications Act 2003 (CA 2003)), to criminalise behaviour where a communication would likely cause harm.
  • This would cover emails, social media posts and WhatsApp messages, in addition to pile-on harassment (when a number of different individuals send harassing communications to a victim).
  • This would include communication sent over private networks such as Bluetooth or a local intranet, which are not currently covered under the CA 2003.
  • The proposals include introduction of the requirement of proof of likely harm. Currently, neither proof of likely harm nor proof of actual harm are required under the existing communications offences.
• Cyber-flashing – the unsolicited sending of images or video recordings of one’s genitals – should be included as a sexual offence under section 66 of the Sexual Offences Act 2003. This would ensure that additional protections for victims are available.
• Raising the threshold for false communications so that it would only be an offence if the defendant knows the post is false, they are intending to cause non‑trivial emotional, psychological, or physical harm, and if they have no excuse."

Law Reform Commission Meeting on The Rule of Law and The Response To COVID-19

In early July, the 4 law commission of England and Wales, Scotland, Ireland and Jersey held a joint annual meeting to discuss government responses to the COVID-19 pandemic.

They recently published the proceedings from that gathering:

"Striking the balance between the urgency of the responses required by a public health crisis and the rule of law is a challenge for every legitimate government. Achieving the balance not only protects human rights and safeguards institutions but may also help to support the measures required by the emergency by sustaining public trust in the institutions and in the legitimacy and necessity of the measures introduced. It is an issue that has been considered in both international instruments and national legal frameworks ... Ten principles to reconcile the immediate exigencies of a crisis with the long-term legitimacy offered by the rule of law may be derived from these sources: legality, necessity, proportionality, non-discrimination, time ii limits, non-derogable rights, international obligations, parliamentary scrutiny, effective remedy and transparency." 

"Bodies engaged with law reform such as the Law Commissions attending this online Joint Annual Meeting of the four neighbouring Law Commissions have a role in supporting governments achieve the best outcomes. The meeting presented a timely opportunity to take stock of what measures had been introduced and to evaluate their compatibility with human rights and the rule of law (...)" 

"Presentations were made by each of the Law Commissions for England and Wales, Ireland, Scotland and Jersey. The Law Commission of England and Wales gave an oral presentation about potential post-COVID law reform priorities and did not present a formal paper to the meeting. The papers prepared by or digests of the presentations from each of the Law Commissions of Ireland, Scotland and Jersey follow."

COVID-19 Reports from Legislative Research Organizations

The US-based infoDOCKET website has posted a list of Reports From the Congressional Research Service and Legislative Research Organizations in Australia, Canada, EU, and UK:

"Below, find a growing list of reports from the Congressional Research Service (U.S) as well as legislative research organizations in Australia, Canada, EU, and UK. We update this page several times a week."

The non-American research organizations referred to include the Parliamentary Library in Australia, the Library of Parliament in Ottawa, the via European Parliament Research Service and the House of Commons Library in the United Kingdom.

Updated GlobaLex Research Guide on the United Kingdom

GlobaLex, a very good electronic collection created by the Hauser Global Law School Program at the New York University School of Law, has updated its research guide on the legal system of the United Kingdom.

English Law Commission Report on Money Laundering

The Law Commission in England has released a report on anti-money laundering measures.

It is estimated that between 0.7 and 1.28% of annual European Union GDP is connected to suspect financial activity.

In 2017 the UK government asked the Law Commission to review limited aspects of the anti-money laundering regime in Part 7 of the Proceeds of Crime Act 2002 and the counter-terrorism financing regime in Part 3 of the Terrorism Act 2000. The Commission was specifically asked to examine ideas for reform of the system of voluntary disclosures known as the 'consent regime'.

The final report makes 19 legislative and non-legislative recommendations to improve the consent regime, including:

• An advisory board with oversight for the regime, with a remit to oversee the drafting of guidance, to measure the effectiveness of the regime and advise the government on ways to improve it.
• Retaining the consent regime, subject to amendments to improve effectiveness.
• Statutory guidance on a number of key legislative concepts underpinning the reporting regime, to assist the regulated sector in complying with their legal obligations. This includes guidance on: suspicion, appropriate consent and arrangements with prior consent and what may amount to a reasonable excuse.
• Prescribing the form in which suspicious activity is reported, making use of technology to devise an online interactive form.
• An exemption to allow ringfencing of suspected criminal property by a credit of financial institution. This provides for a more proportionate response to the reporting of (suspected) criminal property.
• Extending the circumstances in which a reporter may have a reasonable excuse not to make a voluntary disclosure.
• Further research into the utility of thematic reporting or geographical targeting orders, which remove the reporter’s discretion to assess suspicion.

Law Commission of England Consultation on Surrogacy

The English Law Commission has published a consultation document on the law of surrogacy.

From the description of the project:

"Surrogacy is where a woman – the surrogate – bears a child on behalf of someone else or a couple, who intend to become the child’s parents.|

"As society changes, surrogacy is becoming more common – the number of children born this way could be 10 times higher than it was a decade ago."

"In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008."

"But there are significant problems with the law. Currently, intended parents have to wait until the child has been born and then apply to court to become the child’s parents. The process can take many months to complete and doesn’t reflect the reality of the child’s family life, and affects the intended parents’ ability to take decisions about the child in their care (...)"

"In the paper, we make provisional proposals to improve surrogacy laws so they better support the child, surrogates and intended parents. Key proposals include:

• Creating a new surrogacy pathway that will allow, in many cases, the intended parents to be the legal parents of the child from the moment of birth.
• Introducing specific regulation for surrogacy arrangements and safeguards such as counselling and independent legal advice. This should reduce risk of arrangements breaking down.
• Allowing international surrogacy arrangements to be recognised here, on a country-by-country basis."

Th consultation period ends in September 2019.