CLRN Network Projects and Process
A. NETWORK CONFERENCES AND ASSOCIATIONS
1) The Criminal Law Reform Now Conferences and Books
The CLRN Network was launched following a general reform conference in 2016 (see here), where a selection of expert speakers presented on various criminal law reform topics. The proposals fed into the Law Commission's 13th Programme consultation; and were later published in a collection with Hart (see here). We hosted a second such event in association with the Law Commission for their 14th Programme in 2021 (see here), with an edited collection to follow.
We will continue to host conferences of this kind in line with the Law Commission's consultations, feeding into its work as well as presenting a snapshot of 'big ideas for law reform' from our network.
2) Association with the Criminal Law Team at the Law Commission for England and Wales
The CLRN Network proudly supports the work of the Law Commission. As part of an ongoing association, at twice yearly meetings, we maintain regular dialog with the Commission about ongoing reform projects as well as about the broader ideas and insights from our members. Our website blog (see here) is a particularly useful mechanism for members to share ideas on law reform, to be fed into our discussions with the Commission.
The Criminal Law Reform Now Network (CLRNN) agreed a Memorandum of Understanding with the Law Commission of England and Wales in 2023, facilitating a closer working relationship and the increased exchange of ideas. The MoU, the first of its kind, sets out agreement for
- The institution of periodic meetings between the Law Commission and CLRNN to discuss potential law reform projects;
- The receipt from CLRNN (and public acknowledgment from the Law Commission) of proposals and reports that would address the feasibility, value and scope of potential law reform projects;
- The joint discussion of ideas and the provision of feedback from the Law Commission to CLRNN so as to increase the potential value of CLRNN ideas to the Law Commission; and
- The receipt from CLRNN of invitations to attend and/or present at relevant conferences on areas of mutual interest. The MoU will initially run for two years.
B. NETWORK PROJECTS
CLRNN 1: Review of the Computer Misuse Act 1990
Project Lead: Simon McKay
Report Published in 2020
Reforming the Computer Misuse Act 1990 is the CLRNN’s first report. The Computer Misuse Act 1990 (CMA 1990) is now almost 30 years old. In the years since it has not kept pace with rapid technological change. It is clear that the CMA 1990 requires significant reform to make it fit for the 21st century. The report identifies various problems with the CMA 1990 and provides detailed analysis and expert recommendations for reform. This includes recommendations for primary legislative reform of offence definitions and the creation of new defences, as well as associated measures to clarify guidance for prosecutors and sentencing courts.
The Home Office began a consultation on reform of the CMA in May 2021. We continue to advocate reform in line with our CLRNN 1 Report recommendations.
CLRNN 2: Review of Private Prosecutions
Project Lead: Jonathan Rogers
In 2009 the then Director of Public Prosecutions, without consultation, promulgated a new policy on overtaking private prosecutions, requiring the CPS to do so in any case where the CPS’s own Code tests (the evidential and public interest tests) were not met. This was held to be lawful by a 3-2 majority of the Supreme Court. Whether this is an appropriate policy requires a study of its effect on disappointed would-be private prosecutors and affords an opportunity to consider what purposes private prosecutions may serve and which offences are most effectively prosecuted privately. Reforms to this policy, if any, may be suggested to the CPS, suggestions may be made to the police about policies regarding the gathering of evidence for private prosecutors, issues relating to costs may require legislation, or the attention of judges who assess costs under present legislation.
Status: We held a scoping symposium on this project in April 2018 at UCL; a Framework Document was published in October 2018; and we discussed drafts of the report at our scrutiny symposium in January 2021. We are currently working with authors to finalize chapters for the report. The final report is expected to be published in Spring 2024.
Update 16 Jan 2024: As readers will likely know already, the government has promised as yet unspecified reforms to private prosecutions as part of the fallout from the Post Office scandal and the (literally) dramatic way in which the matter has recently reached the public consciousness.
In a sense some promise of reform is not entirely new. The Justice Select Committee made recommendations regarding possible safeguards, in 2020 and again in 2021. On behalf of the CLRNN, as project lead, I also sent a paper to the MoJ in August 2021 concerning the merits of an inspection regime, which was acknowledged by the MoJ in a response to the JSC in January 2022. In that letter, James Cartlidge MP, then Parliamentary Under-Secretary of State for Justice, indicated that his team would be further in touch with us. Since then, the matter went quiet while Sir Wyn Williams started his inquiry into the Post Office saga. But we are, as ever, willing to advise or work with the Ministry as they see fit, according to their timetable as it may now be.
We expect to complete our report in spring of this year (2024), but it may be of interest if we already outline our direction of thinking, and specify the ways in which any interested persons might still assist us.
- We believe that there is still a place for so-called private prosecutions, by which term (which has no statutory or other definition, and the meaning of which thus usually depends on the context in which the term is used) we mean any prosecution which is not conducted by the Crown Prosecution Service or the Serious Fraud Office.
- We believe that it is possible to set some limits on the circumstances in which the DPP may be invited to take over a private prosecution at the behest of the accused.
- However, persons or bodies which undertake prosecutorial work, including their legal representatives, should be accredited. Where this has not happened, a magistrate should only issue a summons to start the proceedings in exceptional circumstances. Further information should also be supplied than is currently the case to the examining magistrate in all cases when a summons is requested.
- The possibility of compulsory inspection of private prosecutors should be created. (At the moment there is only a statutory power to inspect the CPS and SFO) and powers to restrict or inhibit prosecutors might then follow from that inspection.
- We will also propose various reforms to the costs regime, but we do not support any move to tie recovery of prosecutors’ costs to those which apply to legal aid work. We have already set out some of our thinking on s.17 and s.18 Prosecution of Offences Act 1985 here.
Individuals or bodies who should like to be involved, and interested journalists, should jointly email me at firstname.lastname@example.org and our network facilitator Laura at L.Noszlopy@bham.ac.uk . We are particularly interested to hear from:
- Those with experience in regulating lawyers in private practice,
- Those with experience in inspecting the work of prosecutors,
- Those with experience in applying for summonses in the magistrates’ courts,
Those with relevant experience in conduct or defending private prosecutions, including applications for cost orders.
CLRNN 3: Consent and Deception
Project Lead: Paul Jarvis
Report Published in 2023
The research focuses on so-called ‘sex by deception’ cases where a defendant has engaged in sexual activity with another person only after (and as a result of) the defendant having either lied or concealed something known by the defendant to be important to that other person – be that the defendant’s identity, his religion, his sexual health, his marital status, and so on. Existing sexual offences have been applied to deception cases, particularly where the deception concerns the nature or purpose of the sexual act (e.g. where the defendant pretends to carry out a medical procedure but really means to sexually assault the patient) or the defendant’s identity (e.g. where the defendant poses as the victim’s partner). But outside this narrow subset, where a person’s apparent consent to sex is clearly undermined by the defendant’s words or actions, the legal landscape has become a quagmire.
The CLRN Network has recommended the creation of a new offence of inducing sexual activity by deception, to be added as a new section 4A to the Sexual Offences Act 2003. (We discussed our proposals recently with the Statute Law Society, see here)
CLRNN 4: The Regulation of Drugs
Project Lead: Melissa Bone
The project will focus on three severable, though inter-related, problematic areas in the practical regulation of people who use controlled drugs: (1) pre-trial matters (i.e., depenalisation, diversion, or prosecution); (2) post-trial matters (i.e., sentencing); and (3) the ‘special case’ of medical cannabis exemptions. We recognise broader debates about the re-classification and legal regulation of all drugs, but that is not our concern here. Rather, our aim is to identify and explain a series of perceived problems within the current law, problems that appear to be resulting in tangible harms to those within the criminal justice system, and to offer recommendations for reform that can be implemented immediately.
Status: Launched in 2021. The scoping event for the Drugs project was held at the University of Leicester on the 29th April 2022, and this has resulted in a framework document setting out the policy areas the project will focus on. The CLRNN Committee are now confirming authors/editors for the project, and we welcome contact from anyone interested in being involved.
CLRNN 5: International Co-Operation and Extradition (ICE)
Project Lead: Gemma Davies
This project arises from a new Memorandum of Understanding with the Law Commission of England and Wales, facilitating a closer working relationship and the increased exchange of ideas. Under the second heading of the MoU, the CLRNN has been invited to undertake the ICE Project by the Law Commission Criminal Law Commissioner – Professor Penney Lewis – following the Commission’s 14th Programme consultation. CLRNN will conduct a scoping study to examine whether a law reform project in these areas may be warranted and, if so, what the scope of a project might be. We expect to deliver a Report to the Commission by the end of 2024, and will make the Report publicly available thereafter.
Status: We are holding initial scoping meetings with stakeholders, with a view to finalising the headings of the report later in early 2024.
For info on any of these projects, please contact our Network Facilitator Dr Laura Noszlopy (L.Noszlopy@bham.ac.uk).
CLRN Network Project Process
Reform projects within the Network will proceed across four stages.
Stage 1: Identifying the area of law
The first task for each new project is to select a suitable area of law for review. This is done at a CLRN Network meeting, with members of the network encouraged to attend and/or provide written recommendations.
Our conference in September 2016 ‘Criminal Law Reform Now’ explored twelve ideas for potential law reform, focusing on legislative change. These proposals will be published as a collection in 2019. Any of these proposals would make a viable project for the CLRN Network, but we are not limited to these proposals, and we are not limited to a legislative focus. There are very few restrictions on the kinds of project the CLRN Network can take on. We restrict ourselves to comprehensible ideas for specified reforms, excluding those which would only be expected to receive academic support or understanding. We will target areas where there is sufficient expertise to form a useful project team. However, we are open to exploring ideas which are comprehensible even though they might be thought likely to encounter political resistance, nor do we restrict ourselves to reforms which require legislation. We will be happy to consider projects across the criminal law piste: including procedural, evidential, sentencing and substantive issues, as well as topics that combine these.
Stage 2: Identifying the issues, and forming the team
Having identified the area of law, the next stage is to reach out to members of the CLRN Network and beyond (principally though the SLS, and our mailing list) to find relevant experts working and/or researching in the field. These individuals are brought together for a full day conference exploring various aspects of the legal topic, and identifying issues that require further review within the project. Shortly after this scoping event, we form a core Project Team of 6-10 authors.
The proceedings from the conference will feed into the working of the project team. They may also be published separately by the authors.
Stage 3: Writing the Report, and flexible consultation
The project team are responsible for drafting the CLRN Network Report, exploring the relevant area of law and setting out recommendations for reform. Project teams, with support from the CLRN Network Directors and Committee, may also conduct consultation exercises as appropriate to the project. Reports will typically be around 100 pages in length, and written in an accessible style. Lastly, the CLRN Network Directors and Committee review the Report and offer comments, before it is finalised.
Stage 4: Dissemination and impact
CLRN Network Reports are intended to have maximum impact on their chosen target for legal reform. With this in mind, reports will be made immediately available for free on our CLRN Network webpage. Further to this, print copies will be made and sent to relevant people within the targeted reform institution or body. A range of publicity will also be considered at this stage, including interviews with print media, launch symposium, public meetings etc. The CLRN Network Committee and Project Team will continue to work with the target reform institution or body to take the proposals forward. Team members will remain free to publish their contributions or adapted contributions, under their own name, outside the Network Report, respecting the copyright of other Network contributors.