Bristol Uni student Sirak Kebede examines the tax through the eyes of Rawls and Nozick

The Labour government’s introduction of VAT on private school fees has sparked fierce debate. Supporters of the policy believe that wealthier families must pay “their fair share”, whilst critics argue the policy has “a damaging effect on individual children” and restricts personal autonomy. This article will evaluate the policy through the lens of two competing theories of justice; Nozick’s libertarian Justice as Entitlement and Rawls’ Justice as Fairness. Further, the article will also consider how the concept of justice informs wider interventionist policies and sheds light on the role of the state impacting change through education.

Rawls

John Rawls (1921–2002) was prominent political philosopher who is famed for developing his concept of justice in his seminal work A Theory of Justice (1971) (later to be Political Liberalism). What he offered was a revamped way of organising the political, legal and social landscape and his philosophical influence still reverberates loudly around the world.

Justice as Fairness

Central to Rawls’ theory of justice are two concepts; the Original Position and the Veil of Ignorance. The two principles operate as structures that help rational individuals make choices that would make for a fairer society.

The Veil of Ignorance describes an unawareness of one’s own position in society. It is a thought experiment in which individuals make decisions about social structures and principles of justice without knowing their future position in that society. If individuals are unaware of their position in society or their particular characteristics (such as race, gender, age and so forth), they are encouraged to make more rational decisions. For example, it would be constructive for everyone to have better access to education, mainly due to the fact that you would not know where you could end up.

Behind the aforementioned, individuals rely on two key principles that construct the Original Position.

• (i) each person is to have an equal right to the most extensive basic liberties compatible with similar liberty for others, and
• (ii) social and economic inequalities must satisfy two conditions: they must be (a) to the greatest benefit of the least advantaged, and (b) attached to offices and positions open to all.

The second element of the principle (Part a), known as the Difference Principle, lends itself as a powerful instrument to scrutinise the VAT policy.

Private schools naturally fulfil the inequality element as only a small part of society (around 7%) has access to it, underpinned by their socioeconomic standing, as opposed to any form of merit.

Thus, applying the VAT on private schools could allow income and wealth to be redirected. If the money generated was funnelled into state schools that would not normally have the same resources, especially the worst performing ones, the overall effect would correspond with Rawls’ notion of aiding those worse off in society and evening out the playing field.

Lastly, Rawls readily admits that some inequality is positive as it can act as an incentive, which aids innovation. Rawls advances a form of justice that distributes its capital to the most disadvantaged, creating fair equality of opportunity and demonstrates how state intervention could lead to a fairer society. Through the Rawlsian lens, the argument to impose a sales tax on private schools presents itself as compelling.

Nozick

Robert Nozick (1938–2002) is another influential philosopher and was Rawls’ contemporary but sat at the opposite end of the justice spectrum. His influential work, Anarchy, State, and Utopia (1974), is at the heart of Libertarian doctrine and also serves as a reaction to Rawls’ thesis. Nozick’s work is still reflected in deliberations across the globe, specifically on taxation, individual liberties and the state.

Entitlement Theory

Nozick’s position rests upon three distinct principles:

• (i) Justice in Acquisition
• (ii) Justice of Transfer
• (iii) Rectification of Injustice

The first two principles will be used to examine the policy. Nozick believes that an individual’s assets or capital should not be subject to distributive policy, as long as they acquired it through legal means. For Nozick, the means of distributing capital resource by levying a sales tax on a small portion of society does not justify the ends. The Nozickian position suggests that if there must be taxes, they should be general and only fund minimal state functions, as opposed to targeted policies designed to achieve the government’s broader goals of scholastic equitability. When it comes at the expense of those better off in society, Nozick likens tax to “forced labour”.

Education, in this sense, is like any other product, which can be bought and owned by the individual. Justice of Transfer reflects this position, if the transfer (of goods, land, property and so forth) is legitimate and consensual the individual is exercising personal autonomy and so the state should not intervene.

This is neatly conceptualised by Nozick’s ‘Wilt Chamberlain’ metaphor (named after the successful American basketball player. To explain this metaphor I have supplanted Chamberlain with Lionel Messi for contemporary affect. For instance, whenever Messi plays, he takes fifty cents of every ticket sold, as he attracts the most fans. Therefore, if 50,000 fans were to descend to watch him play, that means he would have effectively earnt €25,000. This means that Messi (all things being equal) has more money than everyone else, despite the fact that everyone has played in the same game for the same amount of time. What Nozick shows through metaphor is that it is unequal, yet it would be difficult to argue that it is not just. Moreover, it further illuminates the second principle, as a voluntary transaction actually preserves an individuals’ liberty.

This analogy is used to elucidate how a distributive policy encroaches on one’s liberty and that the state is there to promote individual freedoms and not social equality. In light of this, we can see how Nozick would view such a policy as coercive; it undermines an individual’s ability to choose what is best for them, the transfer is no longer just. Equally, should those same individuals want to help fund worse off schools, then that would be viewed as a free-market matter and not forced. Nozick’s theory would suggest that the levying of a VAT on private schools symbolises an interference on personal autonomy. He makes it clear that such distributive policies are coercive, forceful and a governmental overreach that penalises success.

Comparison

The Nozickian would believe the policy is unfair because it targets only a small number, specifically for education. Under Nozickian justice, individuals should be able to spend as they see fit, which in this case would mean on private education. Yet, this has an unintended consequence of creating a lopsided society; in the long term it creates bigger issues as disparity between demographics grow. As opportunities for a better education have a direct link to better employment prospects which leads to better life outcomes.

Rawls’ distributive justice would assist those who have the capability but not necessarily the means. The theory helps promote the virtue of merit and subsequently mitigates the advantages imparted by private education. The benefits of which are seen in the most influential positions, take for instance parliament which is 23% privately educated or the UK’s senior judges at 65%. It creates a homogenous vacuum, where the plane of ideas echoes one another, which has the potential to stifle innovation.

Moreover, the UK is no stranger to interventionalist policies, a prime example of this fairmindedness is the Education Act 1944. In order to fund such legislation, taxes were raised and eventually led to a net benefit for the country as a whole. Through this lens, it is clear to see why more of society would be drawn to the Rawls’ ideas of distributive justice. Societal equitability through the power of education presents a more compelling argument, which in turn allows for greater universal fairness.

To further understand the argument, the state’s application of justice can be likened to a GPS in a car; the car represents society, and the driver represents the state. Rawls and Nozick might be thought of as different navigation systems, each offering a different route to societal order and effective justice. The government must steer between these normative frameworks, often under the constraints of legal feasibility and political pragmatism. It is these limits which makes for a non-definitive answer, as it is not black and white; the true answer lays somewhere in the middle. Nonetheless, the author is persuaded by Rawls’ argument and the virtues of distributive justice.

Conclusion

Finally, the divergence in theories presents a philosophical fissure, which alter perspectives of justice and fairness. The theories offered by Rawls and Nozick are an expression of how two vastly different understandings of justice can lead to fairer outcomes in society. Rawls’ theory is favourable as he prioritises merit through distributive action, even if it means taxing justly acquired income. His argument offers a persuasive framing of the policy, which leads to more equitable outcomes in society, especially in education.

Sirak Kebede is a second-year law student at the University of Bristol and an aspiring barrister.

The Legal Cheek Journal is sponsored by LPC Law.

Cambridge law student Jack Gower proposes a reform of voting rules for prisoners

With overcrowding at record highs and self-harm incidents rising year after year, the UK prison system is in crisis. Yet one long-running question is asked repeatedly: Should prisoners be allowed to vote? Supporters of the current regime of disenfranchisement argue it sends a necessary moral message: commit a crime, lose your say in society. But what if we are stuck in the wrong debate?

Instead of endlessly rehashing whether prisoners should vote or not, it is time to ask a deeper question: how can prisoners have a voice in the policies that govern their lives — without upending the UK’s constitutional traditions?

Here is a modest proposal: let prisoners elect their own representatives to an official Prisoner Representation and Advisory Council (PRAC). No full voting rights. No seats in parliament. Just a structured, democratic way to consult prisoners on the laws and policies that directly affect them.

This is not about being soft; it is about being legitimate. And it could be the first real step toward restoring trust in a penal system on the brink.

The problem with all-or-nothing thinking

Under Section 3 of the Representation of the People Act 1983, all UK prisoners serving a custodial sentence are barred from voting in local and national elections. In Hirst v United Kingdom (No 2) and Greens and M.T. v United Kingdom, the European Court of Human Rights ruled that this blanket ban violates principles of proportionality and inclusion.

Despite this, parliament has resisted reform. The compromise has been minimal — some prisoners on temporary release or home detention curfew are allowed to vote. But this limited concession is a political fig leaf, not a meaningful solution.

The debate is stuck in a binary: either prisoners vote, or they don’t. It ignores the messy constitutional complexity beneath. On the one hand, parliament retains sovereign authority over the franchise. On the other, the UK has committed itself to upholding democratic rights, including through the European Convention on Human Rights. The result is a constitutional impasse — and a missed opportunity.

A democratic role short of the vote

The idea of PRAC is simple. Establish an elected council comprising representatives chosen by the prison population. These representatives would not hold legislative power or public office. Rather, they would act as mediators between prisons and policymakers — consulting on legislation, advising the Ministry of Justice, and publishing reports on penal policy from the perspective of prisoners.

This would not challenge parliamentary sovereignty or public confidence. It would instead inject procedural fairness and legitimacy into a system that often marginalises the people it governs most intimately.

Why does this matter? Because prisoners live with the consequences of penal policy — from overcrowding to staff shortages to institutional neglect. And when things go wrong, they pay the price. The Howard League reported 76,365 incidents of self-harm in English and Welsh prisons in the year to June 2024 — a record high.

Punishment ≠ silence

One common objection is that voting is part of the punishment. But civic exclusion should not mean civic erasure.

As Sandra Fredman argues, citizenship is not just a legal status but a lived political identity. Denying prisoners all forms of participation fractures their civic membership and obstructs rehabilitation.

Jeremy Waldron similarly contends that disenfranchisement suppresses a vital communicative channel between citizen and state, weakening both democratic legitimacy and penal justification. PRAC offers a way to maintain punishment while preserving voice.

Prisoners remain citizens. They follow laws, pay taxes on prison wages, and are governed by the state. A limited consultative role is not a privilege — it is a recognition of their continued membership in the political community. It sends a message: even behind bars, the rule of law applies.

A principled, constitutional step

Some might call this utopian. But in truth, PRAC is constitutionally modest. It fits squarely within the UK’s tradition of incremental reform. It would not require an Act of Parliament. It could be introduced through ministerial discretion, with pilot schemes in select prisons.

Critics might argue that even limited representation for prisoners could invite disruption or erode public trust. But PRAC does not give prisoners political power — only a voice. It is not about privileging offenders but restoring policy legitimacy in a system that governs their lives daily.

It offers a principled alternative to total disenfranchisement without infringing on legislative supremacy or public trust. It embodies the core values of proportionality, dignity, and democratic accountability — without triggering constitutional disruption.

The bigger picture

The UK’s penal system is at a breaking point. Politicians often campaign on being “tough on crime” but rarely address what happens once the sentence begins. Overcrowding, underfunding, and rising rates of self-harm suggest a deeper crisis of legitimacy.

By creating a structured, democratic forum for prisoner input, PRAC could be the first step in a broader project: restoring the moral authority of the state within prison walls and reinforcing the legitimacy of punishment through participation rather than exclusion.

Prisoners as political actors? Not in the traditional sense. But as stakeholders in a system that governs their lives? Absolutely.

It’s time to stop asking whether prisoners should vote — and start asking how we can make penal democracy more legitimate, accountable, and humane.

Giving prisoners a voice isn’t radical. It’s constitutional common sense.

Jack Gower is a second-year law student at the University of Cambridge with a keen interest in legal reform, democratic accountability, and the role of institutions. He is currently developing a public-facing blog that explores key issues in UK public law.

The Legal Cheek Journal is sponsored by LPC Law.

Newcastle uni student Joanna Makriyiannis discusses greenwashing regulation in the UK and its impact on businesses

Greenwashing refers to practices by which companies mislead consumers, investors, or the public into believing that their products, operations, or policies are more environmentally friendly than they truly are. It typically involves exaggerated, vague, or false claims about sustainability, often designed to capitalise on the growing demand for ethical and eco-friendly business conduct.

In recent years, organisations have faced increasing pressure from investors, regulators, and consumers to adopt environmental, social, and governance (ESG) standards. While this had led to positive developments in corporate responsibility, it has also created incentives for superficial or deceptive behavior. In response, UK regulators have begun to scrutinise environmental marketing claims more rigorously.

This article explores the current and emerging legal frameworks in the UK that seek to prevent greenwashing, including the role of the Competition and Markets Authority (CMA), the Advertising Standards Authority (ASA), and the Financial Conduct Authority (FCA). It will assess the implications of recent legislative developments, most notably the Digital Markets, Competition and Consumers Act 2024 (DMCC) and examine the challenges businesses face in ensuring legal compliance with increasingly strict environmental standards.

Overview of the UK legal framework on greenwashing

The UK does not currently have a standalone anti-greenwashing law. Instead, a developing legal and regulatory framework has emerged to govern misleading environmental claims. Key components of this framework include the Competition and Markets Authority (CMA)’s Green Claims Code, the Digital Markets, Competition and Consumers Act 2024 (DMCC) and the Financial Conduct Authority (FCA)’s anti-greenwashing rule, introduced under its Sustainability Disclosure requirements (SDR).

The CMA Green Claims code, published in September 2021, is a central piece of guidance, intended to help businesses comply with existing consumer protection laws, particularly the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). The code sets out six core principles; that environmental claims must be truthful and accurate, be clear and unambiguous, not omit or hide important information, make fair and meaningful comparisons, consider the full lifecycle of the product or service, and be substantiated with credible, up-to-date evidence. While the code itself is not legally binding, it has become an influential benchmark for assessing compliance with consumer law.

Regulatory enforcement has been significantly strengthened under the DMCC, which came into force in April 2025. The Act empowers the CMA to directly impose fines of up to 10% of a company’s global turnover without needing to initiate court proceedings. This marks a major shift from the CMA’s historically softer approach, that relied primarily on guidance and reputational consequences. The CMA has also issued sector-specific compliance advice, including guidance directed at major fashion retailers, warning against the use of vague or unsubstantiated eco-friendly marketing terms.

The Advertising Standards Authority (ASA) also plays a crucial role in tackling greenwashing in advertising. As the UK’s independent regulator of advertising across media, the ASA has previously upheld complaints against companies such as Ryanair and Asos, finding their sustainability-related advertising to be misleading. The combined enforcement efforts of the CMA and ASA signal a more coordinated regulatory approach to greenwashing in the UK.

What’s next? Future directions in greenwashing regulation

While the UK’s regulatory framework addressing greenwashing has significantly evolved in recent years, further developments are anticipated, driven by both international influence and growing domestic momentum for stricter enforcement.

One major external influence is the European Union’s proposed Green Claims Directive, which requires businesses to substantiate environmental claims using detailed scientific evidence and introduces a pre-approval process for eco-labels. Although the UK is no longer bound by EU legislation post-Brexit, regulatory alignment remains commercially and politically strategic, particularly for UK businesses that operate across European markets. The EU’s more rigorous approach may act as a de facto standard, pushing UK regulators to tighten domestic requirements in response.

Domestically, political appetite for stricter regulation is also growing, as climate change and ESG concerns become more prominent in public and policy discourse. The recent expansion of the CMA’s enforcement powers under the DMCC 2024, along with the FCA’s new anti-greenwashing rule introduced under its Sustainability Disclosure Requirements, reflect the UK government’s recognition of the need for stronger deterrents. Some legal commentators have even suggested further reforms, including the formal codification of the Green Claims Code into statute or the introduction of criminal sanctions for repeated or egregious breaches.

Together, these developments suggest that the UK’s regulatory approach to greenwashing will continue to intensify, shaped by a combination of external regulatory trends, and internal political will aimed at ensuring environmental claims are accurate, evidence-based, and legally accountable.

Navigating legal risk: the compliance burden on businesses

Given the rapidly evolving legal framework, businesses are increasingly exposed to significant compliance challenges under emerging anti-greenwashing regulations. A central difficulty lies in verifying environmental claims across complex, global supply chains. Regulatory instruments such as the CMA’s Green Claims Code and the FCA’s anti-greenwashing rule require that sustainability claims be clear, truthful, and substantiated by credible, up-to-date evidence. This imposes a considerable evidentiary and operational burden on companies, who must implement systems capable of tracing raw materials, production methods, and carbon emissions throughout the supply chain. This is especially challenging in sectors such as fashion, electronics, and food, where operations span multiple jurisdictions with inconsistent environmental reporting standards.

Moreover, the financial and logistical costs of compliance, including third-party audits, certification processes, and ongoing supply chain monitoring can be particularly onerous for small enterprises. However, non-compliance carries growing risks. Beyond regulatory liability, companies face reputational damage if accused of greenwashing. Investors, regulators, and increasingly conscious consumers are scrutinizing environmental claims more rigorously, and the proliferation of social media means any inconsistencies can be rapidly exposed and widely disseminated.

Legally, misleading sustainability claims may trigger investigations and enforcement actions, particularly under strengthened regimes such as the Digital Markets, Competition and Consumers act 2024, that enables the CMA to impose fines of up to 10% of a company’s global turnover. In some cases, consumer protection law allows for enforcement even without proof of reliance or harm. In others, such as under sections 90 and 90A of the Financial Services and Markets Act, claimants must demonstrate reliance on the misrepresentation and consequent loss. As regulatory scrutiny intensifies and legal thresholds evolve, businesses must adopt a risk-averse approach by ensuring all environmental claims are accurate, evidence-based, and transparently communicated.

Conclusion: Green claims, real consequences

Therefore, greenwashing is no longer just a reputational issue. It now carries serious legal and financial risks. With stronger enforcement powers under the DMCC Act and new rules from the FCA, UK regulators are now stepping up efforts to hold businesses accountable for misleading environmental claims. As regulatory expectations rise, companies must ensure that all green claims are accurate, transparent, and properly evidenced. In this shifting landscape, proactive compliance is thus essential.

Joanna Makriyiannis is an incoming second-year LLB student at the University of Newcastle with a strong interest in commercial law and how it intersects with business and sustainability. She is curious about how legal frameworks evolve in response to real-world challenges and enjoys exploring these ideas through writing and discussion.

The Legal Cheek Journal is sponsored by LPC Law.

University of Aberdeen student, Steven Collingham, examines this aggressive litigation strategy and what governments can do to address it

When Catherine Belton published her bestselling book Putin’s People in 2020, she expected some backlash. What she received instead was a “coordinated attack”, in the form of malicious lawsuits, instigated by Russian oligarchs across multiple jurisdictions.

Had all claims proceeded, Belton and her publisher’s legal defence fees were estimated to be in excess of £5 million. In the aftermath of the case, she criticised UK defamation laws, stating: “No matter how good the sourcing is on some of these claims, and no matter how great the public interest, the cases are too expensive to defend. The system is stacked in favour of deep pocketed litigants from the outset.”

Belton’s case highlighted a wider problem within the UK legal system known as SLAPPs: strategic lawsuits against public participation. These are lawsuits instigated not to succeed in court, but to overwhelm defendants financially and psychologically. The result is that the defendant is silenced from speaking on a matter of public interest. Tactics such as prolonging proceedings, seeking disproportionate remedies, and filing claims across multiple jurisdictions, are all utilised to force the defendant to withdraw their statements.

SLAPPs indirectly affect all UK citizens. They suppress information which the public have a right to know of, hindering democracy. If you do not have access to all the facts, it means the opinions you draw on large organisations and public figures are less informed. Subsequently, you cannot accurately scrutinise them, as is your right in a free democratic society.

Whilst there is no definitive definition of what constitutes a SLAPP, there are three useful indicators. 1) The claim relates to an expression by the defendant on a matter of public interest. 2) The claimant’s behaviour is reasonably intended to restrict the defendant’s freedom of expression. 3) The claimant’s behaviour is intended to cause the defendant harm beyond that ordinarily encountered in normal litigation.

Existing anti-SLAPP measures

Of course, defences to defamation claims are available — outlined in ss2-7 of the Defamation Act 2013. For example: if something is true, in the public interest, honest opinion, or privileged. The issue with these defences lies in the delay of reaching them in proceedings. Often, by the time that the defendant reaches this stage, they may have already endured years of expensive litigation — on top of psychological and reputational damage. In the case of ENRC V Burgis [2022], Tom Burgis was sued for statements within his book: Kleptopia: How Dirty Money is Conquering the World.

Before the claim was dismissed, it was estimated Burgis accumulated almost £340,000 in legal defence costs. Notably, he stated: “You think about it all the time and it consumes your waking mind and sometimes your sleeping mind. Fear of losing your home, where your family live, and fear of public disgrace. The journalist in these SLAPP attacks is very often portrayed as a crook disguised as a journalist”.

The Economic Crime and Corporate Transparency Act 2023 was a positive sign of legislative progress. SS194-195 recognise SLAPP claims for economic crime and provide for early dismissal of such claims. Other areas however- such as environmental, political, copyright, human rights, all still lack the necessary anti-SLAPP legislation.

The Solicitor’s Regulation Authority has issued warnings on individuals and organisations who bring SLAPP claims, noting the intimidatory tactics used by solicitors which undermine the rule of law. Despite this, they recently faced criticism after failing to act against now defunct law firm — Discreet law, in what was described as a “textbook SLAPP case”. Upon receiving such criticism, SRA chief executive Paul Philip called for the government to adopt a “robust legislative solution” to tackle the very real and increasing problem of SLAPPs. Legislative efforts have been raised in parliament previously, but to little avail. In 2023, an anti-SLAPP bill was introduced to parliament by MP Wayne David. It fell aside due to the general election and has yet to be reintroduced.

What does anti-SLAPP law do?

Anti-SLAPP law typically involves 3 main forms of legislative intervention:

• Early dismissal of claims — giving the judiciary clear statutory authority to toss out claims deemed to be a SLAPP at an early stage. Whilst some judicial discretion exists, it is seemingly applied too conservatively, and too late in proceedings whereby defendants have already built up significant legal costs. This measure also switches the burden of proof onto the claimant to show that their claim is more likely than not to succeed at trial.
• Protection for a defendant’s legal costs — whereby the claimant must provide security for the defendant’s legal costs if the claim is identified to be a SLAPP at a later stage. This makes it more financially risky for claimants to instigate abusive lawsuits, thus acting as a significant deterrent for frivolous claims.
• Damages that reflect the harm suffered — whereby, if the claim is found to be a SLAPP, the claimant can be held liable for both material and immaterial damages to the defendant. This legislative measure would recognise that SLAPPs cause more than just financial harm but often lead to significant psychological distress for defendants.

Challenges for reform

Any new measure faces the distinct challenge of balancing competing fundamental rights. Specifically, a defendant’s right to freedom of expression (ECHR ART 10), and a claimant’s right to privacy (ECHR ART 8) as well as to a fair trial (ECHR ART 6). Of course, many defamation claims are well-founded, and critics of reform would argue a risk of undermining these claimant rights. Ultimately, any new measures must be targeted at filtering out abusive claims only. The criteria for what constitutes a SLAPP cannot be too loose. If too much protection is given to defendants, legitimate claims may be deterred. Nevertheless, it does seem the scale is tipped against defendants currently.

With SLAPPs, the lack of hard statistical evidence also makes it difficult to argue there is a pressing need for reform. The government has acknowledged this but noted that formal cases only represent a small proportion of all SLAPP activity. This means that a lot of the harm SLAPPs cause occurs behind the scenes, and ultimately most cases don’t make it to court. Regardless of the data, my view is that even a few cases of abuse within the legal system merit our attention, especially if they are capable of causing a wider democratic deficiency.

The EU and cross-border claims

In 2024, The EU adopted its own anti-SLAPP directive, Directive (EU) 2024/1069, which is now being implemented by national parliaments in EU member states. This directive, amongst additional measures, provides for: early dismissals, costs protections, and awards of damages- similar to those discussed. Additionally, Scotland are due to hold a consultation in Autumn on anti-SLAPP measures. This arguably places strong pressure on England and Wales to follow suit.

SLAPPS also often predispose a cross-border element. Libel tourism, a phrase historically associated with the UK, refers to claimants bringing an action in the jurisdiction most likely to give a favourable result. Indeed, the UK has been noted to have relatively claimant-friendly defamation laws, making it an attractive destination to sue someone.

S9 of the Defamation Act 2013 was a positive introduction, intended to prevent libel tourism. It states that the court will not have jurisdiction unless ‘England and Wales is clearly the most appropriate place to bring an action’. Despite this, some concerns remain, with the threshold to establish jurisdiction here still being labelled ‘not a very onerous one’ by media rights campaigners such as Padraig Hughes.

Establishing jurisdiction in these claims has become inherently more nuanced in the digital age. In 2020, Swedish journalists from Realtid were sued in London by businessman Svante Kumlin. This was despite the relevant publication being in Swedish, on a Swedish website, and evidence suggesting relatively low readership in the UK. Whilst much of the claim eventually failed or was settled, the process has dragged on for several years, costing the defendants a significant financial and psychological burden. Had the discussed anti-SLAPP measures been in operation, such costs could have been saved, and perhaps such a claim deterred in the first place.

Conclusion

It is clear SLAPPs are gaining significant recognition on a European scale. In the UK, the law arguably fails to provide adequate protection to a defendant’s freedom of expression in these cases. Reform is certainly not without challenges and must be careful not to overreach — but in my view, it is necessary.

Steven Collingham is a dual-qualifying Scots and English law student at the University of Aberdeen. He is an aspiring solicitor with a strong interest in commercial law.

The Legal Cheek Journal is sponsored by LPC Law.

Oxford Uni student Yoshinori Maejima looks at continuation funds and explains their impact on law firms

What are continuation funds in private equity?

Continuation funds are a type of exit plan in the private equity secondary transactions market. Private equity firms buy and manage unlisted, underperforming companies to increase their profitability, to be sold off or listed on the stock exchange for a profit. The primary and secondary markets differ in significant ways. Whereas the primary transactions market consists of Limited Partnership (LP) investors (investors who invest into private equity funds) investing directly into the fund and buying an interest from the General Partner (professionals responsible for managing the investment fund), the secondary transactions market consists of investors buying and selling existing/pre-owned investments in private equity funds with other investors. Continuation funds have formed nearly 50% of secondary transactions since 2021, and are a crucial form of secondary transactions in the ever-expanding private equity market.

Continuation funds allow for the fund manager to distribute the revenue from the existing investment to its current investors while also allowing for a continuation in ownership under its current management. In short, continuation funds allow fund managers to have continued ownership of existing investments while also providing liquidity to investors.

What are its benefits, and why is it on the rise now?

Asset management company Schroders notes that continuation funds have become a popular exit option in the secondary market due to the increased market volatility and geopolitical uncertainties. Such uncertainties discourage traditional exit options in private equity, namely IPO (Initial Public Offering, or listing on the stock exchange) and mergers and acquisitions. Continuation funds thus provide existing investors with more options for liquidity.

Additionally, continuation funds allow for long-term strategies to be implemented in existing investments. This allows for the growth of high-quality, high-potential companies to realise their full market potential. Additionally, because continuation funds allow for the continued ownership of the portfolio companies by the same General Partner, they can employ existing, experienced management teams to continue developing the company’s long-term strategy.

What are the risks?

However, continuation funds carry significant legal risks. Firstly, because the same private equity firm acts as the buyer (as the continuation fund) and the seller (as the existing fund), it creates a potential conflict of interest. Private equity firms must make sure that a fair price is given to the portfolio companies being sold to the continuation fund from the existing fund, in order not to favour one group of LP investors over another. To mitigate this issue, EQT, a Swedish global investment firm, notes that the presence of a neutral, third-party advisor who ensures the fairness of the prices for which the assets are being sold from the existing fund to the continuation fund is crucial in resolving any conflicts of interest that may exist.

Additionally, ensuring that the interests of the General Partner and the LP investors of the funds are aligned is crucial. This is important as the General Partner must work to maximise the value of investments made by the LP investors. The Institutional Limited Partners Association (ILPA) states that the General Partners are usually expected to contribute 100% of their carried interest earnings from the existing fund to the continuation fund to ensure the alignment of interests between the General Partner and the LP investors.

How does this affect law firms?

The rise of continuation funds affects law firms in significant ways. Firstly, it increases the volume of transactions, thus creating more work for transactional and advisory lawyers. The work of these lawyers is crucial in making sure that these transactions are as efficient as possible from a business and tax point of view while complying with all legal requirements pertaining to private equity in all relevant jurisdictions. The work of advisory and regulatory lawyers is made particularly important in light of the increased regulatory scrutiny into GP-led secondary transactions since 2023. Orrick, a global law firm, notes that regulators, particularly those in the US, scrutinise these transactions to ensure that the interests of the LP investors are not being compromised and that the third-party advisors to these transactions do not have existing relationships with those involved in the transaction, which could create conflicts of interest.

Conclusion

In conclusion, continuation funds are a necessary and crucial exit option at a time of heightened geopolitical and economic uncertainty. They serve two crucial purposes, as they allow for the continued ownership of strategically important private equity investments while also providing liquidity to LP investors. However, they carry significant legal risks, with the potential conflict of interest being the most significant. Law firms have a significant role to play in navigating such complex transactions.

Yoshinori Maejima is an undergraduate student reading history and politics at the University of Oxford.

The Legal Cheek Journal is sponsored by LPC Law.

Year 12 student Inaam Bawa takes a look at how businesses use gaps in the law to maximise their profits

Businesses are run to maximise their profits. This means that, when taxes and legal limitations threaten to reduce their earnings, businesses begin to reconsider their strategies. Therefore, many companies turn to “loopholes”, gaps or ambiguities in legislation, as a strategic tool.

Whilst these practices aren’t actually illegal, they often raise ethical concerns and are frowned upon by the public. This article will explore how loopholes shape strategies in three different ways: international tax avoidance; domestic regulatory exploitation; and the morals involved in the flexibility of the law. Using case studies and various sources, I will argue that although loopholes may offer short-term benefits to businesses, they ultimately reveal the need for smarter laws.

One of the most prominent examples of how legal loopholes shape business strategy is seen in international tax planning. Some multinational corporations exploit the differences in national tax codes to move profits from high-tax countries to low or no-tax jurisdictions. For example, Google utilised a mechanism known as the “Double Irish with a Dutch Sandwich” to transfer billions in profits from Europe through Ireland (and the Netherlands) to Bermuda. In 2017, Google moved roughly £16.9 billion ($23bn) using this to process. Though entirely legal at the time, this strategy drew sharp criticism. The European Parliament argued that these mechanisms distort competition and undermine the fairness of tax systems. In 2013, Apple chief executive Tim Cook said the company paid “all the taxes we owe, every single dollar”, however the company announced in 2020 that it would no longer be using this strategy, following a change in US tax law. Companies that use these structures say they are complying with the law; however, these schemes force us to confront whether legality is an adequate measure for fairness.

Loopholes are not always limited to international tax shelters; they also exist in domestic systems and are exploited in other ways. In the UK, for example, property owners began registering empty commercial buildings as “snail farms” to avoid paying full business rates. As agricultural land is taxed differently, this reclassification allowed owners to significantly reduce their liabilities, costing local councils revenue. Though it seems absurd on the surface, these actions highlight the resourcefulness with which some businesses exploit legal ‘grey areas’. The fact that this strategy was used to bypass a legal duty without straying outside the boundaries of the law, indicates the need for more precise laws to be drafted. It also demonstrates that loopholes are not always the result of international complexity; often, they stem from oversights in domestic policy.

Another major way loopholes shape decisions is through how companies treat their workers. A clear example is how gig economy platforms like Uber, Deliveroo, and Bolt have sought to classify their drivers and riders as “self-employed” rather than employees. By doing this, they don’t have to cover holiday pay, sick leave, or pensions. These workers often work full-time hours, but legally they’re not entitled to the same protections as regular employees. It’s a clever strategy, but one that comes at a human cost. It means many people working under these conditions have no real security, even if the company relies on them every day.

This loophole in employment law has generated some backlash and legal challenges in recent years, with courts in both the UK and EU ruling in some cases that these workers should be considered employees. For example, Uber drivers were recognised as ‘workers’ by the Supreme Court in 2021, although this only applies when they are logged onto the app, they are now entitled to holiday pay and a few other employment rights. However, they still don’t have the same full-employment rights as employees. Interestingly, much more recently, Deliveroo riders were subject to a ruling that was not in their favour, as the Supreme Court ruled against collective bargaining rights finding that they were not ‘workers’ but ‘self-employed contractors’. This left thousands of riders without paid sick leave and other benefits.

Another example would be zero-hour contracts. Technically, they offer flexibility and no guaranteed hours, just the chance to work when needed. However, in actuality, this can often lead to unstable incomes and workers being constantly “on call” without knowing when they’ll get paid. It makes it hard to budget, plan childcare, or even apply for a mortgage. Companies defend these contracts by saying they’re legal and suit some lifestyles, but the reality is that it results in uncertainty and stress for lots of employees.

According to the Trades Union Congress, over a million people in the UK are on zero-hour contracts, with many stuck in low-paid, insecure work. It’s a clear case of businesses using a legal structure to their advantage, even when it puts workers in difficult positions. More recently however, the Labour Party’s pledge to ban these contracts has been widely anticipated by the UK. Changes to these zero-hour contracts are included in the Employment Rights Bill 2024-25. The Bill would create two key rights: the right to reasonable notice of shifts and payment for shifts that are cancelled or curtailed at short notice and the right to a guaranteed hours contract reflecting the hours regularly worked. This provides evidence of how the law is constantly adapting and adjusting to close a few of these loopholes that businesses exploit.

Finally, there’s also outsourcing. Large companies often use agencies or third-party contractors to avoid taking responsibility for how workers are treated. A 2023 University of Aberdeen research report shed light on the treatment of Bangladeshi suppliers by global clothing retails. Some major online retailers have been criticised for poor conditions in UK warehouses, long shifts, pressure to meet intense targets, and little recourse for workers, because the staff were hired through agencies. Technically, these companies can say the workers aren’t “theirs”, even if they’re doing the company’s work. It’s another loophole that keeps profits up while shirking responsibilities and shifting accountability to someone else. These gaps in the law make it easy for consumers to separate a company’s brand image from the reality behind the scenes.

Legal loopholes are likely to continue to shape business strategy across both global and local contexts alike, as no matter the measure put in place, individuals are likely to always find a way around the law. Whilst these tactics provide a way for companies to reduce costs and increase competitiveness and profit, they often do so at the expense of fairness and public trust. Whether through tax avoidance or domestic rate manipulation, these methods reveal the need for smarter regulation and more ethical awareness. Legal systems should close the gap between what is permitted and what is fair. Ultimately, it is not just the loopholes our societies need to examine, but the culture that rewards the use of them.

Inaam Bawa is an A-level student at the Tiffin Girls’ School and is currently studying English, Psychology, and Economics. She plans to pursue a law degree and legal profession and is particularly interested in how the law constantly adapts to human behaviour.

The Legal Cheek Journal is sponsored by LPC Law.

Third year law student Stefanos Papanikolaou on the West’s changing approach to aid and international development

International aid remains an important factor for the development and prosperity of states. As long as there is a distinction between developed and developing nations, foreign aid will remain a point of reference for the global community.

The reason why the North-South dialogue persists is rooted in the legacy of colonialism and decolonisation. Colonialism refers to the process of occupation and domination of regions and exploitation of populations and resources, imposing economic, political, and social control by the colonial power. Decolonisation on the other hand, refers to the process of independence for the colonies and the end of colonial rule. With the New International Economic Order (NIEO), which was a set of proposals introduced by developing countries to promote a fairer global economic system, developing countries supported the end of this dependency and proposed this new framework — this new setting for interdependent economies. However, these new conditions allowed the resurgence and reemergence of colonialism in a hidden, modern form.

After World War II, with the Marshall Plan (launched in 1948, was a U.S. initiative to provide economic aid for the reconstruction of Europe after World War II.), the concept of economic aid began to take shape. Direct economic aid aimed to provide immediate support and address crises in countries facing emergencies. Simultaneously, a new form of assistance emerged: development assistance. Specifically, despite the existence of conditions and requirements for the provision of aid, such as the mandatory purchase of products from the aid-providing country in cases of bilateral agreements (conditionality), the entire endeavour proved ineffective.

Over the years, it became clear that the system was not delivering results. The exhaustion of aid-providing countries, known as “donor fatigue” combined with the lack of proper utilisation of aid by recipient countries, led to a new situation. This new setting allowed developed countries, in search of new investment opportunities, to relocate companies to tax havens, boosting their profits. At the same time, these countries succeeded in exercising political influence, intervening in internal affairs and expanding their reach.

Before we proceed with further analysis of the title, we must provide some basic information.

Under international law, foreign investments are classified, in general, into foreign direct investment (FDI) and indirect, foreign portfolio, investments (FPI). The main difference lies in the level of control. In direct investments, the investor exercises substantial control. The investor does not merely acquire shares but actively participates in the management and strategy of the company. It may involve establishing a company from scratch (greenfield investments), acquiring or merging with an existing company in the host country (mergers & acquisitions), or forming a joint venture between countries (joint ventures). On the other hand, indirect investments involve acquiring financial assets, such as stocks, bonds, and other securities, which do not grant the investor management control over the company. These investments are typically short-term or medium-term.

The question I pose at this point is: why is there criticism of foreign investments as a new form of aid?

The answer is simple. The nature of foreign investments acts as a form of colonisation. The technique of “debt-trap diplomacy” applied by countries such as China, which has expanded notably in Africa and Latin America, is sparking intense debates. Countries unable to repay their loans allow China to exert geopolitical influence and implement its Belt and Road Initiative (BRI). A notable example is Sri Lanka, which granted China a 99-year lease of the Hambantota port due to its inability to repay its debts. This agreement is often accompanied by a lack of strict regulations, transparency, and frequent environmental degradation, with unsustainable exploitation of natural resources due to the absence of enforcement of conditions. A similar example is the case of Piraeus, where the U.S. and the EU view Chinese investment as a means of expanding China’s geopolitical influence.

One of the consequences of this strategy is the reduced local development. In developed economies, profits are repatriated, and wealth is redistributed without being reinvested into the local market with new investments. Consequently, profits may leak into tax havens or the parent company. China, in fact, uses Chinese labour and materials for the construction of its projects. Ultimately, the primary concern of investing countries is the desire to control the host nations in terms of their international presence, exerting political pressures to avoid criticism from countries with ties to the investing nation on issues such as human rights or Taiwan.

Countries with strong economies continue to exert influence without allowing for a truly mutually beneficial collaboration. Therefore, there is an urgent need for transparency and the avoidance of excessive dependence on external powers. At the same time, relations between states should follow the principles and rules of the international community, offering each other opportunities for genuine development and prosperity.

Stefanos Papanikolaou is a third-year law student at the Aristotle University of Thessaloniki and an active member of the European Law Student Association. He has a strong interest in international trade law and global development policy and recently served as an official delegate at the 62nd United Nations Framework Convention on Climate Change session in Germany.

The Legal Cheek Journal is sponsored by LPC Law.

Oxford University student Yoshinori Maejima’s explainer on this increasingly popular form of lending

Private credit (also referred to as direct lending) has grown tremendously in the past year, with the largest asset management firms in the world, such as BlackRock, acquiring leading private credit firms such as HPS in July 2025. Preqin, a London-based investment data company, expects the global private credit market to reach $2.6 trillion by 2029.

The rise in private credit is also reflected in the rise of private credit Collateralised Loan Obligations (CLOs), especially in the European market, which has traditionally lagged behind the US private credit CLO market. This was demonstrated in the first private credit CLO offering in Europe by Barings, a global investment management firm, in late 2024. This article will explain what private credit and private credit CLOs are, how they compare to more traditional forms of lending, the reasons for their rise, and potential risks.

What is private credit, and how does it compare to traditional forms of lending?

Private credit refers to loans given by asset managers, rather than banks, to corporate borrowers. The loans originate from private credit funds, which are funded by investors — limited partners (LPs) — and usually include institutional investors such as pension funds. The private credit managers pool these resources and extend loans to corporate borrowers, making a profit from the scheduled interest repayments on the loans. Some of this profit is then returned to the LPs, allowing institutional investors to make a profit.

This structure is quite similar to private equity; however, rather than investing in privately listed companies, investors in private credit invest in loans extended to corporate borrowers. Private credit originated as a way for corporate borrowers to access loans during times of high interest rates, or when banks and debt capital markets were unwilling to extend loans to these corporations because of financial distress or mismanagement. However, in the past decade, they have become a mainstay on the global financial market.

Private credit is often analysed in comparison with syndicated loans, which are loans given by two or more lenders and structured and administered by commercial or investment banks. In comparison to loans extended by a single private credit fund, syndicated loans generally have less restrictive covenants (conditions on loans) and lower interest rates. However, broadly, syndicated loans have a slower speed of execution and are less flexible in their arrangement, considering how the interests of multiple banks must be taken into account.

Private credit also differs from public debt in significant ways. Public debt is traded publicly in debt capital markets, and often has higher liquidity and more transparent pricing, which are determined by market forces while being more heavily regulated by the FCA. On the other hand, private credit is negotiated entirely between the borrower and the lender. They tend to be less liquid than public debt, less regulated, and therefore are considered less transparent.

Notable lenders in the private credit market include firms such as Ares, Blackstone, and Apollo.

What are private credit CLOs, how do they compare to more traditional forms of CLOs, and how are they related to private credit?

Collateralised Loan Obligations (CLOs) are a structured credit product. They are a single security sold to investors backed by a pool of corporate loans, which are usually below investment grade. Investors invest in CLOs to receive interest payments from the underlying pool of corporate loans. To facilitate this, CLO managers classify and divide the underlying pool of loans based on their default risk (referred to as tranches, ranging from AAA to BB) and sell them to investors based on this categorisation.

CLOs fundamentally differ from syndicated CLOs as the source of the loans is different. Syndicated CLOs are backed by corporate loans that are bought from the syndicated loans market. On the other hand, private credit CLOs are backed by loans from the asset management firm’s own private credit portfolio. In short, the asset management firms package the private credit loans extended to corporate borrowers into private credit CLOs and sell them to third-party investors, allowing the asset management firms to free up capital and earn management fees on the CLOs. Thus, as global corporate services provider Ocorian notes, the rise in private credit and private credit CLOs is inextricably linked.

Why is private credit on the rise, and what are its benefits?

Both private credit and private credit CLOs are on the rise as they suit both investors (LPs) and corporate borrowers. The International Monetary Fund (IMF) notes that for LPs, the relative illiquidity of private credit compared to syndicated loans means that they can earn illiquidity premiums, increasing their yield. Additionally, most private credit loans use a floating interest rate and are never traded publicly, thus protecting LPs from volatile changes in interest rates and the wider economy. Lastly, private credit is considered a safer investment compared to private equity, although it may generate lower returns than some private equity investments. As Pete Drewienkiewicz, chief investment officer at Redington, an investment consultancy, notes, in the case of bankruptcy or liquidation, debt always takes precedence over equity and other classes of assets in subsequent legal proceedings, ensuring that investors will be protected when the asset manager’s investments fail.

Barings notes that investors favour private credit CLOs for similar reasons. Compared to syndicated CLOs, they provide greater illiquidity premiums. Additionally, compared to syndicated CLOs, investors have a higher chance of recovering their investments in cases of bankruptcy. Private credit CLOs have stricter covenants compared to syndicated CLOs, and therefore, investors have greater control over their loans and can engage directly with the company management to protect their investments. Ocorian notes that private credit CLOs are less affected by market turbulences, have stronger underwriting discipline, and therefore have lower default rates compared to syndicated CLOs.

Investment management firm State Street cites three key reasons why borrowers turn to private credit. Firstly, private credit offers an attractive alternative to traditional lending, especially as banks are becoming less willing to extend loans given new regulations such as Basel III, which were introduced after the 2008 financial crisis. Additionally, private credit is more flexible than traditional lending, and therefore, borrowers can get loans which are more tailored to their specific needs. Lastly, compared to a private equity investment (if the company is private) or selling equity on the stock market (if the company is public), private credit allows corporate borrowers to obtain funds without diluting their ownership and decision-making processes.

What are the potential risks in private credit?

Despite its benefits, private credit carries significant risks, as noted by Credit Benchmark, a financial data analytics company. The characteristics which make it attractive to investors (illiquidity and lack of regulation) can also be a source of concern. Its illiquidity means that investors cannot readily sell these investments, unlike stocks and debts traded on public markets. Additionally, its lack of regulation means a lack of transparency for investors.

Although there are strict regulations on disclosing information for publicly listed equities and debt, the fact that the borrowers of private credit are often non-listed companies means that information on these companies is less readily available, thus requiring more stringent due diligence from investors. Similarly, as Barings notes, grade reporting in private credit CLOs is less transparent compared to syndicated CLOs.

Finally, private credit’s relatively unregulated nature has attracted the attention of regulators and international bodies. Bodies such as the IMF and the Bank for International Settlements have expressed concern that if underwriting standards for private debt (requirements a borrower must meet to obtain debt) are lowered in the future, and if retail banks gain greater exposure in private credit, this could lead to another financial crisis caused by unsustainable debt.

Although future EU and US regulations on private equity could provide more clarity for industry players and thus help boost the industry, more stringent regulations could also stymy its growth. Cato Holmsen, CEO of Nordic Trustee, a bond trustee and loan agency provider company, argues that while some industry leaders believe that new regulations could improve investor confidence, new regulations should not be too stringent to the extent that they harm demand in the private credit market.

Conclusion

In conclusion, private credit offers an attractive alternative to traditional lending for both institutional investors and corporate borrowers. For investors, it provides a relatively stable, high-yield source of income that is safer than private equity. For borrowers, it provides access to funds which traditional banks may not be willing to lend in a quicker and more flexible manner. However, its low liquidity, relatively less transparent nature, and new regulatory frameworks proposed by bodies such as the IMF can pose significant threats to the growth of the private credit market in the coming years.

Yoshinori Maejima is an undergraduate student reading history and politics at the University of Oxford.

The Legal Cheek Journal is sponsored by LPC Law.

Birmingham Uni student James Bloomberg explores the challenges that AI poses to the justice system and concepts of legal personhood

The advancement of artificial intelligence (AI) presents a complex challenge to contemporary legal and ethical frameworks, particularly within judicial systems. This Journal explores the evolving role of AI in the courtroom, using recent high-profile cases, including fabricated legal citations and algorithmic hallucinations. It examines how AI’s integration into legal research and decision-making strains traditional understandings of accountability, responsibility and legal personhood. The discussion also considers AI’s broader societal impact.

The advancement of technology over the recent years has resulted in a seismic shift in the way societies interact, how businesses operate and how governments can regulate this change. AI is now a driving force changing how we live our lives, how students work at university, but most of all its ability to make quick decisions creates red flags, especially for law firms. With AI becoming a part of our everyday life, with AI now in-built on WhatsApp, X (formally Twitter) and elsewhere, questions have been raised: Should AI be granted legal rights? This discussion, far from hypothetical, would challenge existing legal frameworks, and ultimately lead to questions about the societal as well as ethical implications there would be, when AI is recognised as a legal entity.

Article 6 of the Universal Declaration of Human Rights addresses legal personhood, the status upon which an entity is granted the ability to hold rights and duties in the legal system. This can be anything from the legal persons being the owners of property, the ability to act and be held responsible for those actions or the ability to exercise rights and obligations, such as by entering a contact. In the past, corporations have been granted legal personhood. However, if this same concept was applied to AI systems such as ChatGPT, this introduces further complexities that transcend any current legal definitions. The European Parliament has previously explored whether AI systems should be granted a form of legal status to address accountability issues, particularly in cases where harm is caused by autonomous systems.

In 2024, a Canadian lawyer used an AI chatbot for legal research, which created “fictitious” cases during a child custody case in the British Columbia Supreme Court. This was raised by the lawyers for the child’s mother, as they could not find any record of these cases. The circumstance at hand was a dispute over a divorced couple, taking the children on an overseas trip, whilst locked in a separation dispute with the child’s mother. This is an example of how dangerous AI systems can be, and why lawyers today need to use AI as an assistant not as a cheat sheet. However, who is to blame here, the lawyers or the AI chatbot?

A major argument against granting AI legal personhood is that it would contradict fundamental human rights principles. The High-Level Expert Group on Artificial Intelligence (AI HLEG) strongly opposes this notion, emphasising that legal personhood for AI systems is “fundamentally inconsistent with the principle of human agency, accountability, and responsibility”. AI lacks consciousness, intent, and moral reasoning — characteristics that underpin legal rights and responsibilities. Unlike humans or even corporations (which operate under human guidance), AI lacks an inherent capacity for ethical decision-making beyond its programmed constraints.

Another central issue is accountability. If AI were granted legal rights, would it also bear responsibilities? Who would be liable for its actions?

Another case saw a federal judge in San Jose, California, ordering AI company Anthropic to respond to allegations that it submitted a court filing containing a ‘hallucination’ created by AI as part of its defence against copyright claims by a group of music publishers. The claim sees an Anthropic data scientist cite a non-existent academic article to bolster the company’s argument in a dispute over evidence. Currently, clarity is needed as to whether liability for AI-related harm is at the hands of the developers, manufacturers, or users.

In the UK, the allocation of liability for AI-related harm is primarily governed by existing legal frameworks, the common law of negligence, and product liability principles. Under the Consumer Protection Act for example, manufacturers and producers can be held strictly liable for defective products that cause damage, which theoretically could extend to AI systems and software if they are deemed products under the Act. Developers and manufacturers may also face liability under negligence if it can be shown that they failed to exercise reasonable care in the design, development, or deployment of AI systems, resulting in foreseeable harm. Users, such as businesses or individuals deploying AI, may be liable if their misuse or inadequate supervision of the technology leads to damage. While there is currently no bespoke UK statute specifically addressing AI liability, the Law Commission and other regulatory bodies have recognised the need for reform and are actively reviewing whether new, AI-specific liability regimes are required to address the unique challenges posed by autonomous systems.

The use of legal personhood on AI may create situations where accountability is obscured, allowing corporations or individuals to evade responsibility by attributing actions to an “autonomous” entity.

Further, AI decision-making lacks transparency as it often operates through black-box algorithms, raising serious ethical and legal concerns, particularly when AI systems make decisions that affect employment, healthcare, or criminal justice. The European Parliament’s Science and Technology Options Assessment (STOA) study has proposed enhanced regulatory oversight, including algorithmic impact assessments, to address transparency and accountability. Granting AI legal rights without resolving these issues would only increase the risk of unchecked algorithmic bias.

The ethical implications extend beyond legal considerations. AI’s increasing autonomy in creative and economic spaces, such as AI-generated art, music, and literature has raised questions about intellectual property ownership. Traditionally, copyright and patent laws protect human creators, but should AI-generated works receive similar protections? In the UK, for example, computer-generated works are protected under copyright law, yet ownership remains tied to the creator of the AI system rather than the AI itself. Under the Copyright, Designs and Patents Act 1988, section 9(3), the author of a computer-generated work is defined as “the person by whom the arrangements necessary for the creation of the work are undertaken.” This means that, in the UK, copyright subsists in AI-generated works, but the rights vest in the human creator or operator, not the AI system itself. Recognising AI as a rights-holder could challenge these conventions, necessitating a re-evaluation of intellectual property laws.

A potential middle ground involves the implementation of stringent governance models that prioritise accountability without conferring rights upon AI. Instead of granting legal personhood, policymakers could focus on AI-specific liability structures, enforceable ethical guidelines, and greater transparency in AI decision-making processes. The European Commission has already initiated discussions on adapting liability frameworks to address AI’s unique challenges, ensuring that responsibility remains clearly assigned.

While AI continues to evolve, the legal framework governing its use and accountability must remain firmly rooted in principles of human responsibility. AI should be regulated as a tool, albeit an advanced one, rather than as an autonomous entity deserving of rights. Strengthening existing regulations, enhancing transparency, and enforcing accountability measures remain the most effective means of addressing the challenges posed by AI.

The delay in implementing robust AI governance has already resulted in widespread ethical and legal dilemmas, from biased decision-making to privacy infringements. While AI’s potential is undeniable, legal recognition should not precede comprehensive regulatory safeguards. A cautious, human-centric approach remains the best course to ensure AI serves societal interests without compromising fundamental legal principles.

While it is tempting to explore futuristic possibilities of AI personhood, legal rights should remain exclusively human. The law must evolve to manage AI’s risks, but not in a way that grants rights to entities incapable of moral reasoning. For now, AI must remain a tool, not a rights-holder.

James Bloomberg is a second year human sciences student at the University of Birmingham. He has a strong interest in AI, research and innovation and plans to pursue a career as a commercial lawyer.

The Legal Cheek Journal is sponsored by LPC Law.

QMUL master’s student Mai Jolie Maraj explores the risks of corporate expansion into the Arctic

As the Arctic ice decreases, global power and private interest are surging in newly opened waters, armed with fossil fuel ambitions and flimsy oversight. Behind the promise of economic gain lies a dangerous web of weak regulation, corporate lobbying and daring insurance companies, ill equipped to handle the region’s extreme risks. The result? A growing geopolitical and ecological crisis unfolding at the top of the world.

The Arctic has long been a geopolitical pressure point, once the site of Cold war brinkmanship between the USA and the Soviet Union, now a theatre of commercial ambition and environmental risks. Receding ice is revealing not just new shipping routes, but also a staggering cache of untapped resources. In 2008, the US Geological Survey estimated that roughly 22% of the world’s undiscovered oil and gas reserves lie beneath the Arctic seabed. For resource hungry nations, the thawing arctic is no longer a distant frontier, but an economic pivot point.

In 2013, the UK government admitted these findings in its Arctic Protection Inquiry. Whilst they acknowledged that, despite commitment to green transition, Britain’s energy stability still hinges on oil and gas, the government claimed that even if global warming is limited to two degrees Celsius, oil production must continue to rise. The Arctic, it argued, could play a critical role meeting that demand. Conveniently absent from the discussion is any reference to a binding global framework to cap fossil fuel extractions. This flawed assumption that increased Arctic exploitation is somehow reconcilable with climate goals has since been echoed across Europe, particularly as the war in Ukraine reignited anxieties around national energy security. The focus on cutting emissions, rather than limiting extractions, is a distinction that reveals more than just legal semantics; it exposes a deeper structural complicity: the legal and political frameworks enabling this Arctic expansion to become not just insufficient but actively damaging.

These tensions are playing out most visibly along the tripolar regions, comprised of the Russian-led Eurasian sphere centred around the Northern Sea Route (NSR), the European Arctic influenced by Nordic and Scandinavian states, and a North American zone dominated by Canada and the United States. Under international law, eight artic nations enjoy territorial and economic rights through the Exclusive Economic Zones (EEZs), yet these rights are increasingly contested. Russia has asserted full sovereignty over the NSR, a claim which the USA rejects but Canada supports in an act of mutual recognition aimed at legitimising its own contested claim over the Northwestern Passage (NWP). Meanwhile, Greenland is emerging as a critical player, courted by both China and the USA — the latter has gone so far as to suggest the idea of purchasing the island.

As access to the Arctic expands, so do military interests. Russia’s Artic coastline now facilitates strategic maritime access to energy markets in China, Japan and South Korea. Bolstering President Putin’s naval ambitions. In response both the US and Canada have ramped up Arctic defence investments, despite territorial disputes between them remaining unresolved. The scramble for influence in the thawing North is no longer simply about oil or shipping lanes. It is about who will control the final frontier of the global economy. As the ice recedes, so too does any illusion of Arctic neutrality.

The Arctic’s most fragile ecosystems are now bearing the brunt of a dangerously cosy relationship between governments and industry. Nowhere is this more evident than in the national Maritime Organization (IMO), a UN body unusually saturated with corporate influences. For instance, some have criticised the International Convention for the Safety of Life at Sea (SOLAS), claiming that its mandatory shipping certificates provide little meaningful oversight, and that it fails to address key implications of extremely cold temperatures on toxic cargo, communication issues and infrastructure shortages. Hence it is argued that behind these policies lies aggressive corporate lobbying, prioritising profits over human and environmental protection.

Furthermore, the illusion of safety is further sustained by a patchy and opaque insurance system. While international conventions like the Civil Liability Convention for Oil Pollution Damage (CLC) and the Wreck Removal Convention, require vessels to be insured, premiums are often calculated using limited data. This has created a feedback loop where insurers underwrite high-risk Arctic voyages without proper risk modelling. The Polar Code, while outlining operational dangers, does little to mandate safety innovation. Insurers simply issue the required Hull & Machinery and Protection and Indemnity (P&I) cover, often ignoring the scale of third part risks including oil spills, crew endangerment and environmental wreckage.

Under traditional legal principles like aversio periculi outlined in Sadlers Co v Badcock, insurers typically avoid assuming the risk. However, arctic conditions break these models. Payouts have already begun to exceed collected premiums and industry’s ability to manage Arctic- specific hazards such as seized valves, frozen firefighting systems or non- functioning lifeboats, remains questionable at best. The 2012 Shell-Kulluk disaster illustrates this point (which, as previously mentioned, is yet to be addressed in chapter VII of SOLAS).

Shell allegedly ignored warnings from their preferred marine insurers, who refused to greenlight a winter tow of the Kulluk oil rig across treacherous Arctic waters. Instead, they sought approval from another insurer which authorised the operation. When the Kulluk ran aground, a later US coast Guard report cited systematic failures such as: weak inspections, miscalculated risks, and regulatory blind spots that enabled the voyage in the first place.

Arctic shipping isn’t just a legal grey zone; it is a crisis in waiting. Unless systematic reforms address the entanglement of state interests, weak insurance practices and toothless regulations, future disasters are inevitable.

Mai Jolie Maraj is a law graduate from the University of Kent, originally from Trinidad and Tobago. She is currently pursuing a double master’s degree in commercial law, with academic tenure at both Queen Mary University of London and Singapore Management University.

The Legal Cheek Journal is sponsored by LPC Law.

Third year law student Stefanos Papanikolaou examines President Trump’s trade policy in the context of international trade law

International trade law is built on three core principles that guide how states handle their bilateral and multilateral agreements: national treatment, most-favoured-nation (MFN) status, and fair and equitable treatment. These principles are central to two key agreements — the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). GATT focuses on trade in goods, aiming to reduce tariffs and eliminate trade barriers, while GATS governs trade in services, encouraging fair access, openness, and transparency.

The national treatment principle imposes a negative obligation on states, ensuring that imported goods and services are not treated less favorably than domestic ones. Similarly, the MFN principle dictates that any preferential treatment granted to one World Trade Organisation (WTO) member must automatically extend to all other member states. Finally, the principle of equal treatment prohibits discrimination in areas such as foreign investments and other bilateral or multilateral agreements. Within this framework, states are expected to comply with these commitments.

Naturally, there are exceptions: governments may invoke reasons of public health, environmental protection, and national security. Regarding intellectual property, specific provisions ensure protections for domestic rights holders. Additionally, countries have the authority to enter into free trade agreements (FTAs) — such as the European Union — and prioritise their national interests, provided they avoid abusive practices.

The rapid developments in the global economy, the unorthodox policies of the American president, and Europe’s ongoing inertia have undoubtedly caused turmoil — not only in the political arena but across the entire world, which endures this uncertainty with a stoic patience, awaiting Trump’s next move. The truth is that he has not disappointed in this regard. His statements did not remain mere rhetoric but were swiftly translated into action within the very first month of 2025.

When the WTO was established in 1995 following the Uruguay Round (1986–1994), which itself stemmed from trade negotiations dating back to 1947 with GATT, its primary goal was to reduce tariffs, facilitate international trade, and pave the way for global economic growth. It called on states to avoid protectionist policies and promote open markets.

On the other hand, the 1992 Rio Declaration aimed to reinforce the pursuit of sustainable development. And yes, as paradoxical as it may seem today, with war zones proliferating, multiple fronts open across Europe and the Middle East, and domestic unrest escalating in many countries, states had already pledged back in 2015 to implement the United Nations’ 17 Sustainable Development Goals. A decade later, instead of witnessing radical improvements, we are experiencing gradual deterioration.

With this extensive introduction in mind, it is necessary to address the measures that the US president seeks to implement. The “America First Trade Policy” represents a revisionist approach that some have labeled a protectionist move. The concern here, however, lies in the inevitable consequences this shift will have — not only for Trump’s geopolitical rivals and competitors but for the entire world. While the US has identified some justification for its forthcoming decisions—this does not eliminate the possibility of countermeasures being introduced in response to Washington’s aggressive stance. And indeed, the 25% tariff hike on Canada and Mexico, along with the 10% increase on Chinese imports, can be interpreted as an explicit act of aggression and a confirmed trigger for economic recession in both countries.

At the same time, however, these tariffs pose a global threat rather than a legitimate attempt to preserve existing trade arrangements (such as the USMCA, formerly NAFTA, which Trump himself renegotiated in 2020 and now seeks to reopen for further discussions). All of this is happening at a time when global stability is desperately needed.

There is no doubt that the US’s actions raise serious questions about its compliance with international obligations. For example, Trump’s intimidation tactics — such as the threat of tariffs on Colombia as leverage on immigration policy, an issue unrelated to trade — could be interpreted as an abuse of power. The International Emergency Economic Powers Act (IEEPA), which Trump invokes, is intended for economic and political crises concerning national security, not for advancing domestic economic interests. And while Republican voters in the U.S. seem satisfied with Trump’s efforts to deliver on his campaign promises with a recent YouGov poll showing that they overwhelmingly support tariffs, Democrats express concern over the risks posed by his aggressive rhetoric.

The question that remains open, at least for now, is whether this American stance constitutes lawful economic policy tools or flagrant violations of international trade law.

Stefanos Papanikolaou is a third-year law student at the Aristotle University of Thessaloniki and an active member of the European Law Student Association. He has a strong interest in international trade law and global development policy and recently served as an official delegate at the 62nd United Nations Framework Convention on Climate Change session in Germany.

The Legal Cheek Journal is sponsored by LPC Law.

Aspiring commercial barrister and BPC graduate Radha Shivam explains this complex case and the key legal point it hinges on

Credit Suisse Virtuoso SICAV-SIF and another v SoftBank and others is a complex, high-profile dispute involving major players and a long history, with plenty to unravel both financially and legally.

Given its once-strong presence, Credit Suisse needs little introduction. However, following a series of unfortunate events, it faced significant difficulties and was taken over by rival Swiss bank UBS in 2023. This case partly stems from those events. The litigation centres on a claim under section 423 of the Insolvency Act 1986 and is linked to the collapse of the Greensill Group—an event that continues to attract attention today.

There are several defendants involved — in fact, the seventh defendants are Greensill Liquidators. The claim is valued at $440m and Credit Suisse alleges this sum is owed to its customers by Katerra, which filed for bankruptcy in 2021. Kattera was a US company and funded by Greensill, but pertinent to this case, it was backed by SoftBank.

A brief background of Greensill

You may remember the name Greensill scattered over headlines a few years ago, particularly in relation to David Cameron, but how did the company operate and collapse?

According to the Financial Times, Greensill Capital (“Greensill”) often depicted itself as a “saviour” of SMEs. In fact, it often claimed to be “making finance fairer” and “democratising capital”. The reputation that the company had created was often admired, to the extent that in 2017, the King (then Prince of Wales) presented the owner with the honour of a CBE for his services to the economy. This reputation continued and in 2018, former prime minister, David Cameron, became an adviser to Greensill. The company had many investments flowing into it, as investors appeared to be “bewitched by its financial engineering”. In 2019, SoftBank’s Vision Fund poured a staggering $1.5 billion into the company.

So, what went wrong?

Essentially, Greensill’s business model was supply chain finance. The company lent money to other companies by buying their invoices. On a basic level, this means that a financial intermediary, in this case Greensill, provides the financing for a buyer to pay their supplier.

The buyer may be struggling or incapable of paying their invoice(s) by the due date and so would benefit from a company like Greensill to pay on their behalf. In order to maintain their competitive advantage in the highly competitive loans industry, Greensill offered longer repayment terms to attract clientele.

Greensill achieved this financing by packaging invoices as securitised loans and then sold these onto financial institutions, such as Credit Suisse. However, this is a highly risky business model and eventually, Greensill collapsed after their insurers withdrew cover. This critical cover was withdrawn amid concern that the company was significantly exposed to the steel and commodities business, GFG Alliance (“GFG”), owned by the tycoon, Sanjeev Gupta.

Eventually, Greensill were unable to meet their financial liabilities and filed for administration in early 2021. Notably, they were unable to repay their $140 million loan to Credit Suisse. Greensill was tackling a serious lack of liquidity. Credit Suisse were funding Greensill’s operations and wanted to be repaid. However, Greensill had no plausible way of doing so, as their portfolio had a clear overexposure to clients who were defaulting on payments themselves.

GFG, mentioned above, defaulted on $5 billion worth of loans and needed Greensill to provide them with the crucial working capital that they needed, otherwise they would likely collapse into insolvency. GFG was using this funding to finance transactions between ‘related parties’, which only increased the risk of default. When Greensill lost their insurance cover, they were unable to renew a $4.6 billion contract and Credit Suisse froze $10 billion in funding. Thus, there was a dramatic reduction in liquidity and investor trust lined up for Greensill.

In March 2021, lawyers acting for Greensill argued (in Australia) that the company’s insurers should be ordered to extend their insurance policies which were set to expire imminently. This insurance extension that Greensill was seeking was crucial, and it was to back several billion dollars that it was owed by businesses around the globe. If this was not possible, 50,000 jobs would be at risk.

However, the company had waited too long to bring the matter to court. A week later, Greensill had only one option left and filed for bankruptcy in London. As the New York Times stated, “Greensill’s dazzlingly fast failure is one of the most spectacular collapses of a global finance firm”.

This event, plus many more issues, billion dollar losses and significant management changes, eventually had a knock-on effect on Credit Suisse, and led to UBS taking over this former leading financial firm in 2023. Credit Suisse had to sell their shares, a process which began in 2021. This was triggered by losses relating to the collapse of Archegos, an investment fund, and Greensill.

As one of thirty systemically important banks globally, Credit Suisse’s failure would cause a significant ripple effect. UBS’s takeover was structured as a £2.65 bullion all-share merger. This merger was a major event and was expedited by the Swiss government. The government exercised its emergency powers, removing the requirement for shareholder approval, with a view to avoiding any further problems.

Right, that was some financial background. Now for some legal analysis — stay with me.

What is Section 423 of the Insolvency Act 1986 and the important case of <em>El-Husseiny & another v Invest Bank PSC?

Section 423 is an important piece of the puzzle. As stated at the start of this article, the ongoing case of Credit Suisse focuses on a claim under this section.

Section 423 cannot be discussed in this context without also discussing the landmark Supreme Court judgment of El-Husseiny & another v Invest Bank PSC [2025] UKSC 4, handed down in February 2025. This case discussed the scope of section 423, and as the Supreme Court described it, is an “important” point on the interpretation of section 423. These arguments are likely to come up in the litigation of Credit Suisse as well.

This section relates to transactions defrauding creditors and specifically, transactions entered into at an undervalue. It allows creditors to seek the reversal of transactions entered into by debtors, essentially putting assets out of reach or otherwise causing prejudice to creditors.

The issue in El-Husseiny was whether the scope of section 423 was limited to transactions involving assets beneficially owned by the debtor, or whether it extended to transactions involving other assets not owned by the debtor, but due to the way they were dealt with, would impact the value of assets beneficially owned. In El-Husseiny, the issue was that the debtor caused companies, in which he was the shareholder, to enter into transactions involving the transfer of assets owned by the company at an undervalue.

In Abu Dhabi, Invest Bank PSC (“the Bank”) secured judgment against Mr El-Husseiny for c.£20 million. The Bank sought to enforce the judgment against his UK assets, including properties in London and the companies which owned them. It was alleged, amongst others, that Mr El-Husseiny arranged for these assets to be transferred beyond the reach of the Bank.

A key property was 9 Hyde Park, worth around £4.5 million by Marquee Holdings Limited (“the company”). Mr El-Husseiny was the beneficial owner of all shares in the company at the time of the transfer. He had arranged for the legal and beneficial title of 9 Hyde Park to be transferred to his son. Crucially, this was for no consideration. Eventually, the company was deprived of its only asset — the value of Mr El-Husseiny’s shares. Over time, the company was reduced to such a degree that the bank was facing serious difficulty in enforcing judgment against him.

The Supreme Court considered that section 423(1) and the broad definition of “transaction” in section 436(1), meant that the Company’s disposal would fall within section 423(1). The court considered Mr El-Husseiny’s submissions under three headings – textual indicators (the wording of sections 423-425), the purpose of section 423, and the interrelationship of many other sections. The Supreme Court found that the wording of section 423 is sufficiently wide to apply in this context, i.e. when a debtor causes their company to transfer assets at an undervalue, resulting in the diminution in value of the debtor’s shares.

The Supreme Court’s judgment upholds the Court of Appeal’s decision, but the former’s reasoning is much broader. Often a source of contention due to interpretation arguments, this case is said to be of great interest to civil fraud, asset recovery, and insolvency practitioners, in resolving such arguments relating to section 423.

This judgment confirms that section 423 applies where a debtor gains from a transaction that will be detrimental to creditors. This reinforces certainty for creditors and re-affirms the commercial approach taken towards insolvency by English law.

What does this mean going forward?

It is likely that many of these legal interpretations regarding section 423, El-Husseiny, and the complex financial aspects intertwined, will be interesting points of discussion during the ongoing case of Credit Suisse.

This case is expected to bring to light novel legal points, which will no doubt continue to be followed with curiosity by legal practitioners and will likely be referenced in future high-profile insolvency, finance-related and commercial cases.

Radha Shivam is an aspiring commercial barrister, currently an unregistered barrister and Mentor at The University of Law. She has a wealth of experience and holds a strong interest in commercial litigation, banking & finance, and restructuring & insolvency law. She is a LLB (Hons) Law with International Business and BPC graduate, and is an Inner Temple Scholar.

The Legal Cheek Journal is sponsored by LPC Law.

Aspiring criminal barrister Harry Toy takes a look at changes to football legislation

Football is coming home… or is it? In July 2021, England faced Italy in the final of the UEFA Euros 2020. Perhaps, to some, the game is regarded as one of England’s greatest football success stories in recent times (even though England lost!). Yet, despite the cause for celebration, it took a turn when extreme violence ensued.

The main problem was the popularity of the event, when thousands of supporters without tickets forced their way into Wembley Stadium. Ultimately leading to the Baroness Casey Review, which described the day as “sad and disgraceful in equal measure” as well as “a source of national shame”.

Later on, in the report, after surveying several eyewitnesses, they reported that illegal drug use (mainly cocaine) had become widespread and was being taken in plain sight. 47% of those surveyed said they saw illegal drug use upon arrival at Wembley Stadium. At first blush, readers of the report and media coverage might be inclined to think: (1) that cocaine use amongst football fans is commonplace; (2) that there is surely sufficient law to prevent such from happening. It is these two components that form the rest of this article.

Cocaine use amongst football fans

Cocaine, once upon a time, was not the primary drug of choice for football groups as it used to be ecstasy (otherwise known as Methylenedioxymethamphetamine or MDMA). However, fans turned to cocaine following a decline in its purity and then, subsequently, its price. Nowadays, the drug is firmly rooted within football culture, perhaps because of cocaine’s unique short-term effects, which provide a sense of euphoria and confidence . This is certainly the view of one Football Association (FA) Representative who said in Bandura’s et al research that:

“Cocaine use among football fans can give them a sense of euphoria and courage, the same as four, five, six, seven pints in a much smaller time frame”.

In that same vein, Newson’s study indicates that the consumption of cocaine amongst football fans is higher than the national average, and there is a link between cocaine and violence. Whilst it is acknowledged within the literature that cocaine cannot be the sole cause of violence, as there may be other variables, for instance, individual characteristics, the culture, or even poly-substance abuse, cocaine remains a risk factor for the cause of violence.

Is the law sufficient to deal with the matter?

Well… prior to the events on 11 July 2021, the law was not broad enough to cover drug-related offences as ‘football related offences/disorder’ under Schedule 1 of the Football Spectators Act 1989. This schedule provides an exhaustive list of ‘relevant offences’ that will be subject to a football banning order. While, at the time, the Act did include numerous offences relating to alcohol and public order offences — it plainly ignored drug offences. As Daniel Greenberg CB put it in the Baroness Casey report:

“It is difficult to see any policy rationale for the very limited extent to which drugs-related disorderly behaviour is addressed by the existing FBO regime… given such disorder is as likely to be fuelled by drugs as by alcohol.”

With this being a core recommendation of the report, The Football Spectators (Relevant Offences) Regulations 2022 was passed, which incorporated possession of a controlled drug (Section 5 of the Misuse of Drugs Act 1971) and the supply of controlled drugs (Section 4(3) of the Misuse of Drugs Act 1971) into the Schedule 1 of the Football Spectators Act 1989.

What is a football banning order?

A football banning order is a complex piece of legislative drafting, with three statutory sections under the Football Spectators Act 1989. The first, pursuant to Section 14A, is a football banning order where the individual commits a ‘relevant offence’ (as contained in Schedule 1 of the Football Spectators Act 1989). The second, pursuant to Section 14B, is a banning order made in respect of a complaint by a relevant chief officer (e.g. a chief officer of police for any police force or a chief constable of the British Transport Police). The third, pursuant to Section 22 provides a banning order much like Section 14A yet applies to incidents that occur abroad, similar to those offences contained within Schedule 1.

The rationale for such banning orders was to be a deterrent to football violence. Despite this, there has been a rapid shift towards a more punitive approach. As Pearson and Scott assert:

“Football fans were once again guinea pigs for the development of novel legal instruments to attempt to manage social problems.”

Since their inception there have been persistent updates to Football Banning Orders, most recently under Section 192 of the Police, Crime, Sentencing and Courts Act 2022. This legislation changed the circumstances under which a Section 14A banning order should be issued. Previously, this was connected to regulated football match where the court must be satisfied that the imposition of the banning order will prevent violence or disorder. Now, the wording has changed to:

“The court must make a banning order in respect of the offender unless the court considers that there are particular circumstances relating to the offence or to the offender which would make it unjust in all the circumstances to do so.”

Here, the law has taken a huge step away from how the Act was originally intended. The aforementioned change is only one of many since its inception, which led James and Pearson to label these updated football banning orders as ‘super-FBOs’.

To that end, what extent should and does a football banning order apply under this new regime? At present, there is little appellate court authority to determine this, but to take previous authority, it seems that there may be a requirement to show that the offence in question has a connection to a football match (R v Doyle (Ciaran) and Others [2012] EWCA Crim 995). Therefore, how long before or after a football match does a relevant offence need to be in order to be subject to a football banning order? Similarly, in that same light, how close to a football match does a relevant offence need to be?

As a strict rule of thumb, it would be very difficult to say that all relevant offences in and around a football match will be subject to a football banning order. As it is clear from the wording of the new regime, each case will turn on its own facts. Yet the principle of connection still, in many respects, holds some water — although the statute in its new regime does not explicitly state this requirement.

With this conceptual boundary as to where and when a football banning order should take place, policy and policing measures to contain football disorder are informed by the Home Office statistics, which are at best lacklustre. First, they only consider the top end of the football pyramid — this does not address the full extent of football up and down the country. Second, in the context of drugs, the legislative change is still fairly recent, and it is difficult to suggest from a statistical point of view the extent of the problem.

Harry Toy is a first-class Law with Criminology graduate from Nottingham Trent University. He is an aspiring criminal barrister and has recently completed the BTC at Nottingham Law School with a scholarship for Academic Excellence. His LinkedIn account can be found here.

The Legal Cheek Journal is sponsored by LPC Law.

BPP bar student Catherine Chow explains why once-standard commercial clauses are under increasing legal and regulatory attack

Confidentiality has long been a cornerstone of commercial law. Businesses rely on non-disclosure agreements (NDAs), non-compete clauses, and restrictive covenants to protect trade secrets, maintain market advantage, and prevent the misuse of sensitive information. For decades, these tools have been treated as a standard feature of employment contracts, commercial transactions, and service agreements alike. But that is changing.

In a landscape increasingly shaped by transparency and public interest, these once-routine clauses are facing scrutiny from regulators, courts, and even the public. This shift matters not just for Human Resources departments or in-house counsel, but for all commercial lawyers tasked with drafting ethical and enforceable contracts.

NDA overload and public pushback

NDAs are everywhere. They feature in employment contracts, consultancy agreements, mergers and acquisitions, and early-stage business negotiations. They are often signed without much thought or resistance. But their proliferation has attracted growing criticism, particularly when NDAs are used not to protect commercial value, but to silence whistleblowers or conceal misconduct.

In the UK, the #MeToo movement catalysed a critical reappraisal of how NDAs are used. In 2019, the House of Commons Women and Equalities Committee published a report highlighting “routine and extensive misuse” of NDAs in harassment and discrimination cases. The Equality and Human Rights Commission followed with guidance discouraging their use in settlements that aim to deter individuals from making protected disclosures.

Though these are soft-law instruments, they signal a clear regulatory direction. NDAs must not be used to suppress lawful disclosures. Even in commercial contexts, lawyers must now ask whether the NDA they are drafting might one day be scrutinised not just in court, but in parliament or the press.

Courts are also playing their part. In Linklaters LLP v Mellish [2019], the claimant sought an injunction to prevent a former employee from disclosing allegations of misconduct under an NDA. Although the matter settled before judgment, the case prompted urgent debate about the limits of confidentiality when it comes into tension with public interest. These developments serve as a wake-up call, confidentiality is no longer an automatic right, it must be earned and justified.

Non-competes under fire

Non-compete clauses, often included alongside NDAs, are also under intense scrutiny. Their purpose is straightforward: to stop a departing employee from taking valuable know-how to a competitor or setting up shop in direct competition. But critics argue that these clauses stifle innovation, limit employee mobility, and entrench economic inequality.

In 2023, the UK government proposed limiting post-termination non-compete clauses to a maximum of three months in employment contracts. While this proposal has yet to become law, it reflects a growing view within policy circles that such clauses are frequently unnecessary and excessive. The reform would not affect restrictions imposed via garden leave or confidentiality clauses, but it would substantially reduce the time during which an individual could be prevented from pursuing alternative work.

Across the Atlantic, the US Federal Trade Commission (FTC) has gone further, proposing a near-total ban on non-compete agreements. The FTC argues that removing such restrictions could increase wages by nearly $300 billion annually and unlock greater competition across multiple sectors. If implemented, the rule would affect roughly one in five American workers and send a powerful message to the global legal market.

The rise of judicial minimalism

Even where restrictive clauses remain technically lawful, courts have adopted a more minimalist and pro-freedom approach. Clauses that are too broad, too vague, or drafted without careful thought risk being struck out entirely.

In Tillman v Egon Zehnder Ltd [2019], the Supreme Court held that a non-compete clause which prevented an employee from holding even a minority shareholding in a competitor went too far. Although the employer argued the offending language could be severed, the Court rejected this on grounds of overbreadth and lack of justification. The message is clear that employers must narrowly tailor restrictions, or they risk invalidating the whole clause.

In commercial disputes more broadly, clauses that purport to restrict disclosure of “any information” are now seen as inherently suspicious. Courts expect parties to justify why certain information needs to be protected, and for how long. Proportionality is no longer just a principle of public law, it is now a practical drafting standard.

Balancing act: protecting secrets without overreaching

Commercial lawyers now face a delicate balancing act. On the one hand, clients still want robust protection of intellectual property, sensitive negotiations, and business strategy. On the other hand, society’s tolerance for blanket secrecy has diminished. This tension is playing out across employment, corporate, and commercial law.

These are the strategies that seem to assure future-proof drafting:

• Be specific: Instead of protecting “all confidential information”, define categories (e.g., client lists, pricing models, proprietary software) and state why disclosure would cause harm.
• Justify duration: fLong-lasting restrictions should be tied to commercial realities. If sensitive information becomes public or obsolete within six months, don’t impose a two-year NDA.
• Limit geography and scope: For non-compete clauses, a nationwide restriction rarely makes sense for junior employees. The narrower the clause, the more likely it is to be enforceable.
• Build in exceptions: Expressly permit disclosures required by law or regulation, or made in the public interest (e.g. whistleblowing).
• Educate the client Many clients will still ask for aggressive boilerplate. It is a lawyer’s job to explain why enforceability may require restraint.

What’s next?

We are witnessing a cultural and legal shift in how commercial confidentiality is understood. Once treated as a private matter between contracting parties, NDAs and non-competes are now seen as mechanisms with significant social implications. They intersect with free speech, labour mobility, and public accountability.

This means lawyers must adopt a more holistic lens when drafting confidentiality provisions. The days of “one-size-fits-all” clauses are over. What’s needed instead is careful legal craftsmanship, guided by not only the client’s interests but by wider regulatory, ethical, and reputational considerations.

Conclusion

Commercial confidentiality isn’t going anywhere but it’s changing shape. The tools of protection that once lived in the shadows are now front and centre, subject to judicial analysis, public debate, and political reform. Junior lawyers must not treat NDAs and non-competes as afterthoughts. They are no longer just legal wallpaper, they are risk zones, red flags, and potential flashpoints.

Draft with care, clarity, and conscience. Because the next clause you write might not just protect a client — it might define your case.

Catherine Chow is a bar student at BPP University in London with a strong interest in corporate and commercial law. She enjoys exploring how legal frameworks shape business practice and is particularly interested in the evolving role of regulation and risk management in modern commercial transactions.

The Legal Cheek Journal is sponsored by LPC Law.

Future BCLP trainee, Keenan Taku, delves into the government’s proposed trading system

Among the Labour government’s ambitious plans for achieving economic growth is the introduction of the Private Intermittent Securities and Capital Exchange System (PISCES). Originally proposed by the Conservatives in December 2022, PISCES will be a new regulated trading platform designed to let shares in private companies trade in a controlled, intermittent environment.

Rather than being a single exchange, PISCES will operate as a regulatory regime under which approved third-party platforms, such as alternative trading venues, brokers and even the London Stock Exchange (LSE), will provide the trading infrastructure. The initiative forms part of a wide range of proposals intended to reinvigorate the UK capital markets amid concerns that British companies are increasingly choosing to list in the US – for example, Arm Holdings, a Cambridge-based semiconductor and software design company which chose to list on NASDAQ last year.

HM Treasury plans to lay a statutory instrument before Parliament in May 2025, setting out the legal framework for PISCES. It will be set up as a ‘financial markets infrastructure (FMI) sandbox’ – a way for the government to let companies test new technologies and promote innovation in financial services. The sandbox will operate in a live, structured environment with special oversight, and can allow for temporary waivers or adjustments to regulatory requirements.

Key features

• Non-listed companies — PISCES will mainly serve private companies, but unlisted public companies (including overseas firms) may also be eligible.

• Secondary market — The platform will only allow for existing shares to be traded between current and potential investors, and will not allow companies to raise new capital by issuing new shares like a stock exchange would.

• Reduced regulatory burden — As PISCES will initially run as an FMI sandbox, companies trading on PISCES will not be subject to the full Market Abuse Regulations (MAR) or UK Listing Rules. They will follow tailored disclosure and transparency requirements: more than in a private placement, but less than in the public markets.

• Intermittent trading — Participating companies will decide when the “trading windows” will take place (e.g. quarterly or biannually) and for how long.

• Investor restrictions — Only institutional investors, employees of participating companies, and investors who meet the definition of ‘high net-worth individuals’, ‘self-certified sophisticated investors’ and ‘certified sophisticated investors’ under the FSMA 2000 (Financial Promotion) Order 2005 are eligible to participate. At least initially, retail investors are excluded.

• Tax exemption — The draft statutory instrument provides the power to exempt Stamp Duty and Stamp Duty Reserve Tax from applying on the transfers of shares admitted on PISCES platforms.

The market context

With just 18 new listings on the London Stock Exchange in 2024, the UK’s public equity markets have struggled. With factors such as global economic uncertainty, geopolitical risks, and increased regulatory burdens and costs, it is clear why many companies prefer to stay private for longer and then list elsewhere when market conditions are favourable.

The PISCES proposal comes at a time when access to capital from private markets has seen steady growth, with private capital in the UK now providing £1.2 trillion in funding according to UK Finance. Coupled with greater investment from venture capital and private equity into private companies but fewer opportunities for companies to become public and list their shares on a stock exchange by undertaking an Initial Public Offering (IPO), PISCES could be the crucial link that provides a cross-over between the private and public markets.

Private access to capital

One appeal of PISCES is that it provides an easier way for founders and venture capital or private equity backers to access liquidity in a market where IPOs are less attractive and buyers are hard to find. The platform simplifies share sales, but some investors are sceptical about its benefits. Founders of fast-growing companies may be reluctant to opt in fearing that shares negotiated with trusted VC or PE partners could end up with unknown investors with different visions.

Companies could manage this risk by listing a class of non-voting shares on PISCES and limiting the amount of shares offered, but this could come at the cost of little to no interest, and therefore liquidity, from potential investors interested in having control.

Light touch regulation

Under the statutory instrument, the Financial Conduct Authority (FCA) will approve, supervise and intervene in how PISCES platforms are run. However much of the regulation surrounding market abuse, listing rules, and financial promotions will be disapplied or modified in favour of a more tailored regulatory framework.

While a more ‘hands off’ approach to regulation may encourage more PISCES listings, there should still be strong enough controls to prevent abuse and protect investors. The FCA itself confirmed that without market abuse rules, there is a higher risk than in public markets that some investors, such as employees, could have access to information not available to other investors, bringing the integrity of the market into question.

Although breaches of the MAR will not be sanctioned under PISCES, participants would still be subject to broader laws around fraud and misrepresentation, and will be asked to compensate investors, assuming they are still solvent.

All of this could make for an uneven playing field between investors ‘in the know’ and those who aren’t, and reduces trust and confidence in the system.

It is poignant to remember that last year FCA Chair Ashley Alder warned that, “there are clear dangers in indulging in any sort of race to the bottom in any sort of deregulatory agenda…” in relation to a growing trend of the UK trying to deregulate quickly, with a view to keeping up with the US and boost business activity. Are the lack of guardrails worth the opportunities for investment and liquidity?

Decentralised operations

The FCA will delegate much of the rule-setting to the individual operators on admission, disclosure and trading, effectively decentralising its administration. This could prove highly beneficial by creating a competitive ‘private stock exchange market’ where future operators try to outcompete rivals by having lighter onboarding requirements, offering cheaper fees or operating better technology. Competition should lead to smarter, cheaper and faster platforms, as well as expand the choice of listing locations. Different operators may even specialise in different sectors e.g. one operator focusing on biotech startups, another on infrastructure companies.

However, the PISCES operators will ultimately bear no responsibility for the content of disclosures, and will be expected to monitor but not approve them. The FCA does propose a negligence standard to core information disclosure and a higher liability standard for “recklessness or dishonesty” standard for forward-looking statements, but wouldn’t this be more effective if the disclosure was verified? One’s thoughts may turn to when Companies House lacked the statutory powers to verify the accuracy of information it published, so that esteemed characters such as Mickey Mouse and Donald Duck were published as the names of directors of fake companies that were engaged in fraud and money laundering.

That being said, companies seeking investment through PISCES may need to reckon with investors requesting full disclosure of information about the company and its future prospects as institutional investors will likely not give up their usual due diligence checks. While making for a more transparent market, it will erode arguably the most significant advantage of being a private company: confidentiality.

The death of AIM?

Some commentators believe PISCES will be a direct rival to the public equities markets and could prove fatal to the Alternative Investments Market (AIM); the LSE’s junior market for smaller, high-growth companies keen to float but falling short of the requirements of the Main Market. The future of PISCES is wide open, but this prediction is unlikely given that it will not be open to retail investors who freely browse the public exchanges and are more prone to “panic selling” when the market is down.

PISCES does not allow companies to raise new capital which public markets allow for, making it more of a stepping stone to a full listing rather than a direct rival. The LSE’s proposed ‘Private Securities Market’ – making use of the PISCES framework – underscores this co-operation between the public and private markets.

Looking ahead

PISCES represents a bold and potentially transformative attempt to bridge the gap between the private and public markets at a time when companies are increasingly reluctant to go public. By providing liquidity without the burdens of full public market regulation, it could unlock new opportunities for founders, employees, and investors alike. However, its success will hinge on maintaining a careful balance between encouraging innovation and safeguarding market integrity. Without sufficient regulatory guardrails, the very issues that have plagued other lightly regulated systems could resurface, damaging trust and undermining the platform’s credibility before it has had a chance to flourish.

Whether PISCES becomes a springboard for UK growth or a cautionary tale of deregulation gone too far will ultimately depend on how wisely its freedoms are managed.

Keenan Taku is a future trainee solicitor at BCLP. He has a strong interest in capital markets and investment funds, holding a Capital Markets and Securities Analyst certification from the Corporate Finance Institute.

The Legal Cheek Journal is sponsored by LPC Law.

First year law student at Leeds Uni, Xin Ern Teow (Ilex) analyses the UK’s proposals to resolve the tension between copyright and AI-produced content

What happens when cutting-edge technology collides with centuries-old concepts of creativity, privacy, and law? The UK government’s latest proposal, Copyright and AI: Consultation, to allow AI companies to use copyrighted works for training has sparked fierce debate, raising questions about the future of intellectual property in the AI era.

Imagine a world where AI-generated novels outsell human-written ones, where iconic artworks inspire machine-crafted masterpieces, and where centuries of cultural heritage are fed into algorithms to create something entirely new. At the heart of this transformative vision lies a contentious question: Who owns the rights to this creativity, the machines, their makers, or the creators whose works serve as the foundation?

What’s on the table?

The UK government’s Copyright and Artificial Intelligence consultation is the most recent official initiative addressing the intersection of AI and copyright law. This consultation sought public input on how to adapt and modernise the UK’s legal framework to support both the creative industries and the AI sector, balancing their needs and fostering innovation while protecting creative industries.

At the heart of this consultation lie three key objectives:

1. Control: The framework seeks to ensure that rights holders retain control over their works. This means creators should have the ability to license, monetise, and safeguard their content when used by AI technologies.
2. Access: AI developers require access to extensive datasets to train their models effectively. The government proposes streamlined access to copyrighted materials to prevent legal barriers from stifling technological progress.
3. Transparency: The framework aims to establish greater transparency, ensuring all stakeholders — creators, developers, and consumers — understand how AI systems use copyrighted content and generate outputs.

In order to achieve these goals, the government proposes an “opt-out” system, allowing AI companies to use copyrighted works unless the rights holders explicitly object, thereby reducing administrative hurdles for developers. However, it places the burden of action on creators, who must proactively protect their intellectual property.

The creative industry backlash

Undoubtedly, there is a strong opposition ignited from the creative industries, which argue that the “opt-out” system threatens their livelihoods and the value of intellectual property. At the heart of this resistance is the “Make It Fair” campaign, supported by various news organisations, further underscoring the demand for equitable treatment and compensation for creators.

The potential loss of revenue is just one part of the broader concern. Creators fear the long-term ramifications of AI on the entire creative ecosystem. If AI systems are allowed to harvest copyrighted works without compensating creators or offering any recognition, it could lead to a “race to the bottom,” where the value of human creativity is overshadowed by algorithmically-generated content. In this scenario, emerging creators would struggle to profit from their work, as the very worth of their intellectual property would diminish in an AI-dominated marketplace.

Many critics argue that this shift could foster a monopolistic environment in which only a handful of large tech companies profit from AI-generated content, while individual creators are left with little control or benefit. This concern is poignantly illustrated by the silent album, Is This What We Want?, a collaborative protest from over 1,000 musicians, including iconic figures like Kate Bush and Damon Albarn. The album’s track titles collectively convey the message, “The British government must not legalise music theft to benefit AI companies”. This symbolic gesture underscores a key point that this issue goes beyond mere financial gain — it’s about recognition and respect for human artistry in a world increasingly dominated by machines.

While there is broad support for fostering AI innovation, many creatives argue that the government’s approach needs to be balanced more carefully. If these concerns are not addressed, the unrest within the creative community suggests that the government’s proposal may not only face legal challenges but could also lead to a loss of public trust in the ethical development of AI.

The benefits of the proposal

While the proposal has faced significant backlash, the UK government has strongly defended its stance, arguing that the benefits far outweigh the concerns. From the government’s perspective, this initiative is crucial for fostering the growth of AI technology, ensuring the UK remains competitive on the global stage, and contributing to economic growth.

With access to vast datasets, AI models can improve and innovate faster, benefiting industries like healthcare, education, and finance. The government believes this will enable AI firms to create groundbreaking technologies without the delays of seeking permissions for every dataset.

Besides, by facilitating AI development, the UK aims to attract investment, create jobs, and position itself as a leader in AI research. In a global race for AI supremacy, providing open access to data can help the UK remain competitive, particularly against tech giants in the US and China.

Additionally, AI innovation can revolutionise industries, from self-driving cars to personalised medicine. By supporting AI companies, the UK hopes to foster new industries and technological advancements, which would contribute to long-term national growth and improved societal outcomes.

While the proposal acknowledges creator concerns, the government argues that promoting AI innovation justifies easier access to data. If implemented with a balanced legal framework, the UK’s approach could serve as a model for other nations grappling with AI and copyright challenges.

Conclusion

To sum up, the UK government’s proposal to allow AI companies to train their algorithms on copyrighted works without prior permission highlights the ongoing tension between fostering technological innovation and protecting creators’ rights. While the proposal aims to accelerate AI development and bolster economic growth, it raises critical concerns about the fairness of intellectual property distribution and the potential devaluation of human creativity.

Xin Ern Teow (Ilex) is a first-year law student at the University of Leeds with a strong passion for making a positive impact through volunteering. Her interests also extend to negotiation and exploring strategies for conflict resolution and collaborative problem-solving.

The Legal Cheek Journal is sponsored by LPC Law.

Penultimate-year law student, Shayda Darwish, explores how social psychology can distort jury decision-making

“What if the fate of your life rested not on facts, but on the unconscious biases of twelve strangers?”

As an aspiring criminal barrister, Mary Prior KC’s views on the court backlog and the need for investment in the trial process have inspired me to consider researching potential jury reforms, believing that addressing systemic inefficiencies and biases is vital for a fair and effective justice system.

Juries are expected to be neutral decision-makers, yet research indicates that cognitive biases, media exposure, and social psychological factors often distort verdicts, leading to wrongful convictions. This paper explores how these elements shape jury decision-making and questions whether the UK should continue relying on juries or consider alternative judicial models used in other legal systems.

The backlog of cases in the UK’s Crown Courts has reached unprecedented levels, with over 74,000 pending cases as of December 2024. Projections suggest this number could rise to 100,000 by 2029. As someone of Iranian heritage living in England, I wonder whether the UK might consider adopting elements of Iran’s civil law system, which entrusts judges with the responsibility of determining both facts and verdicts. With discussions of jury reform ongoing, it is worth examining whether the UK might transition toward a judge-led system.

The issue of the trial process has also been highlighted by Mary Prior KC of the Criminal Bar Association, who notes that the Government’s commitment to bringing swifter justice for victims of crime cannot succeed unless and until it focuses on investing in the trial process. This points to a critical element: while reforming the system to expedite justice is important, it is equally essential to ensure that the mechanisms of justice—such as the trial process itself—are not compromised by biases and inefficiencies.

Cognitive bias in jury decision-making

Research shows that jurors, like all individuals, are susceptible to cognitive biases, which can unconsciously shape how they interpret evidence and reach verdicts. These biases can result in wrongful convictions, where innocent individuals suffer due to errors in judgment rather than an objective assessment of the facts.

Cognitive biases arise due to the brain’s reliance on mental shortcuts and subjective experiences. Several types of biases can affect jury decision-making:

• Pre-decisional distortion: Jurors may form a preliminary verdict before hearing all the evidence, causing them to interpret new information in a way that reinforces their initial stance. This tendency is heightened when jurors are exposed to pre-trial publicity that negatively portrays the defendant.
• Elaboration likelihood model: Jurors may struggle with complex legal language and the adversarial nature of trials, leading them to rely on preexisting attitudes and beliefs rather than engaging in detailed analysis of the evidence.
• Hindsight bias: This bias makes past events seem more predictable than they were. Jurors may believe they “knew it all along,” which can lead to an unfair perception of a defendant’s actions as intentional rather than circumstantial.

It is important to note that being rooted in natural cognitive structures, laypersons, as well as experts, are not immune to the effects of cognitive bias. While the presentation of strong evidence can attenuate its effects, the inherent ambiguity of adversarial trials means that bias can always potentially impact juror decisions.

Since cognitive biases are inherent in human thought processes, both laypersons and experts are vulnerable to their effects. While strong evidence may help mitigate bias, the adversarial nature of trials creates an environment where subjective interpretations can still influence decisions.

Media exposure

Media coverage plays an unprecedented role in shaping public perception of criminal cases, often influencing jurors before they even enter the courtroom. The rise of social media has further amplified these effects, making it increasingly difficult to shield jurors from external influences.

• Priming effects: Repeated exposure to media narratives can activate specific cognitive associations, shaping how jurors interpret evidence. While priming effects are often quite short-lived, consistent media coverage can alter how that information is stored in memory, leading to longer-term effects.
• Stereotype activation: Media portrayals frequently reinforce racial, gender, or socioeconomic stereotypes. For example, Black individuals are disproportionately depicted as criminals, which may unconsciously influence juror perceptions and decisions.
• Emotional manipulation: Media storytelling often employs emotional appeals to engage audiences, particularly on social media. While some argue that emotional engagement may enhance juror attentiveness, it can also cloud rational judgment and impair critical analysis of the evidence.

Social psychology and jury decision-making

Social psychological factors, including juror-defendant resemblance, play a significant role in jury decisions.

• In-group bias: Jurors tend to empathise more with defendants who share their race, gender, or background, viewing them as more trustworthy and less likely to be guilty. Conversely, those perceived as outsiders may face harsher judgments.
• Emotional influences: Personal experiences, such as the loss of a loved one or resemblance between a defendant and a juror’s family member, can evoke strong emotions and unconsciously shape decisions, making true neutrality difficult to achieve.
• Subconscious biases: Deep-seated beliefs ingrained through upbringing, culture, and society influence how jurors assess credibility, intent, and character, often without their conscious awareness.

External factors in jury decision-making

Beyond psychological influences, external factors such as time pressure and juror fatigue can also impact verdicts. Prolonged deliberations may lead to rushed or less thoughtful decisions as jurors seek to conclude a trial more quickly.

Potential reforms

Several measures could help reduce bias and improve jury impartiality:

• Enhanced jury selection processes: Expanding voir dire and implementing implicit bias screening could help identify and exclude biased jurors.
• Mitigating media influence: Stricter controls on pre-trial publicity, social media restrictions for jurors, and anonymity in high-profile cases could help prevent external biases.
• Juror education programmes: Training on cognitive biases, legal procedures, and critical thinking could help jurors make more informed, impartial decisions.
• Structured deliberation guidelines: Judge-led clarifications, sequential unmasking of evidence, and standardised deliberation processes could help minimise bias.
• Alternative legal models: Mixed tribunals combining judges and lay jurors, smaller expert juries for complex cases, or hybrid systems where judges determine sentencing could improve fairness and balance expertise with public participation.

The question of whether the UK should transition to a no-jury system, like Iran’s civil law framework, requires careful consideration. Research into cognitive biases, media influence, and social psychology suggests that jurors, while essential to democracy, are not immune to external and internal biases.

Juries are intended to be fair and representative of society, yet their susceptibility to unconscious biases, group dynamics, and media pressure raises concerns about their ability to deliver truly impartial verdicts. A shift toward a more structured judiciary, where legal professionals handle verdicts, could mitigate these risks and ensure decisions are based solely on law and evidence. However, such a transition would require thoughtful reform to maintain transparency, fairness, and public trust in the legal system.

As society evolves, so must the justice system. Perhaps it is time to reconsider whether the traditional jury remains the best safeguard of justice or if a more structured, expert-driven approach would serve the public interest better.

As we celebrate the jury as a pillar of democracy, we must also ask: how democratic is a system that allows unconscious bias to shape a person’s future?

Shayda Darwish is an aspiring criminal barrister and penultimate-year law student whose passion for justice is rooted in lived experience with wrongful accusations and systemic failings.

The Legal Cheek Journal is sponsored by LPC Law.

Queen’s Belfast law student Sarisha Harikrishna explores the impact of brain function and behaviour within the context of criminal offences

The law’s existence is anchored in the pursuit of justice and ensuring equality for all individuals, regardless of their social status and racial identity. However, in preserving this delicate balance of justice, the scales tip between intention and action, between what one chooses to do and what one is capable of understanding. In the realm of criminal law, the expectation of proving both mens rea (guilty mind) and actus reus (guilty act) beyond reasonable doubt is required to establish the guilt of an individual under the eyes of the law.

However, the course of proving guilt beyond reasonable doubt is a difficult task for the prosecution, especially when the defendant is neurodivergent. Neurodivergence is the expression used when an individual’s brain processes, learns and displays different behaviours from “typical” actions. Neurodivergence is a broad spectrum, including conditions such as dyslexia (a learning difficulty affecting reading and writing), dyspraxia (difficulty with physical coordination), dyscalculia (difficulty with mathematical concepts), Attention Deficit Hyperactivity Disorder (ADHD) along with Autism Spectrum Disorder (ASD).

Since the birth and consequent flourishing of the common law, it has been hailed for being a versatile body, constantly evolving to meet the demands of society. Yet, it is peculiar how criminal law’s rigid expectations of mens rea fail to account for the nuances of human cognition, facilitating a hostile environment for neurodivergent individuals. For instance, in the case of R v Sossongo, the Court of Appeal quashed the conviction of the then 15-year-old boy’s involvement in a violent murder after evidence diagnosing him with ASD and ADHD were adduced.

This case illustrates the complexities that courts have to navigate in deciding whether to hand down severe judgments such as life imprisonment to individuals who may have an underlying neurodivergent condition where impulsivity, hyperfocus, or social misinterpretation guide their behaviour. This article will delve into how traditional interpretations of mens rea inadequately reflect the cognitive realities of neurodivergent individuals and propose reforms to ensure a more equitable justice system.

Autism and ADHD challenging traditional mens rea standards

It is a common misconception that neurodivergent individuals are a ‘minority’ in the youth justice system. However, they are increasingly becoming the statistical norm in England and Wales, with 12% of individuals in custody possibly having ADHD while 15% may be on the spectrum. A 2021 report by the Criminal Justice Joint Inspection which evaluated the experiences of neurodivergent individuals in the criminal justice system found evidence of ‘serious gaps, failings and missed opportunities at every stage of the system’. The typical process of booking individuals in at the custody suite was found to cause neurodivergent individuals a significant level of distress and anxiety, resulting in behaviours that may be misunderstood as non-compliant by the police. The criminal justice system’s failure to protect neurodivergent individuals from criminalisation through no fault of their own casts doubt on its reputation as an equitable system.

Mens rea, which refers to the intention of an individual to commit a crime which is made penal by statute or the common law, can be proven via tangible evidence, such as the recording of a suspect’s thoughts in a document or electronic communications or if they articulate their thought process in a police interview. Neurodivergent individuals may struggle with abstract thinking, social cues and recognizing the consequences of their actions. This will inevitably negatively impact their ability to form mens rea, inviting questions on whether they were truly autonomous in committing the crime.

Although there have been significant international developments towards recognising neurodivergence as a mitigating factor in sentencing decisions, the United Kingdom seems to be falling behind in engaging in such efforts. At present, the criminal justice system uses the “reasonable person standard” and judges all individuals against this metric, however attempting to fit individuals into an arbitrary box runs contrary to the very crux of the legal system — which is to protect marginalised communities.

Differentiating between neurodiversity and mental illnesses

At this juncture, it would be legally, morally and ethically unsound to conflate neurodiversity to be equal to having a mental illness under the law. English law views mental illnesses and neurodiversity as distinct from each other due to three reasons, which are to ensure justice and fairness, reduce the “revolving door” and promote inclusivity.

First and foremost, it is important to distinguish between both based on their nature and origins. Neurodivergence is often present from birth or early childhood and affects an individual’s real-world interactions. On the other hand, mental illnesses arise due to different factors such as genetics, environmental influences and difficult life experiences. Although neurodivergence is not a mental illness, neurodivergent individuals are at higher risk for developing mental health issues such as anxiety and depression when navigating the challenges in a neurotypical world.

Criminal law permits mental illness to be used as a defence, known as the insanity defence, where the defendant can argue that they had no awareness of their actions due to the presence of a severe mental illness. The insanity defence is a legal, not clinical concept, meaning that evidence of suffering from a mental disorder is not sufficient to prove insanity. The burden shifts onto the defendant to prove the defence.

The “revolving door” refers to the importance of addressing the specific needs of neurodivergent individuals in order to reduce their likelihood of reoffending, especially for low-level offences such as theft, drug possession and criminal damage. By providing neurodivergent individuals with proper resources and tools, it is evident that they would be able to navigate the legal system just as well as their neurotypical peers can.

To this end, a diagnosis of a neurodivergent condition does not inherently mean that an individual has a disability. Some, not all, neurodivergent conditions are legally considered disabilities under the Equality Act 2010. The Act describes a disability as having a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on an individual’s ability to engage in normal daily activities. While many neurodivergent individuals meet the legal definition of disability enshrined under the Act, some of them prefer to see their differences as a strength, preferring to not be categorised as having a disability.

Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD) safeguards effective access to justice for those with disabilities, including through providing accommodations where needed. As a signatory, the UK is required to ensure access to justice for all — including providing neurodivergent individuals with the resources needed to navigate the justice system and fostering understanding among authorities.

Reforms to accommodate neurodivergent defendants in criminal justice

One of the most important reforms that should be undertaken to provide a comfortable environment for neurodivergent individuals in the courtroom is allowing them to sit next to their defence lawyer, rather than being placed separately in a dock. Neurodivergent individuals often fear loud noises and changes in routine, such as being put on the spot during questioning or navigating a high-stress environment.

Additionally, the use of long questions and complex language should be avoided to allow neurodivergent individuals the opportunity to fully process the question before responding. More time should be given to consider information and provide instructions — enabling them to exercise their judgment independently rather than feeling patronised. Environmental adjustments such as removing loud clocks, permitting movement, allowing use of fidget toys or comfort items, and familiarisation with the courtroom can also make a significant difference.

It is well documented that neurodivergent individuals find sudden disruptions to routine challenging, so regular breaks should be scheduled during proceedings. A clear timetable with all timings should be provided, and if an unexpected change occurs, it should be communicated in advance to give time to adjust.

In conclusion, the law cannot claim to be just while it punishes minds it cannot fully comprehend. Neurodivergence is not a flaw in logic — it is simply a different rhythm of thought. If justice is blind, let it also be wise.

Sarisha Harikrishna is in her final year of law school at Queen’s University Belfast. She’s an avid researcher on many different topics, including international law, criminal law and human rights law.

The Legal Cheek Journal is sponsored by LPC Law.

Leeds law school grad Mohammad Anas takes a deep-dive into the ramifications of Ghibli-style images on copyright law in the era of generative AI

The rapid advancement of artificial intelligence (AI) presents a formidable challenge to the legal and ethical underpinnings of artistic expression, threatening the integrity of human creativity. This journal examines the 2024 proliferation of Studio Ghibli-style images on X (formerly Twitter) as a pivotal case study, analysing how AI-generated works strain the copyright frameworks of the United Kingdom, the European Union, and the United States.

Through a review of statutory provisions, judicial precedents, and ethical considerations, it exposes systemic deficiencies in current law and the erosion of artistic identity, exemplified by Ghibli’s anti-war, pro-earth, pro-humanity, and anti-consumerist principles.

The threat to creative authorship

In a Tokyo studio, Hayao Miyazaki meticulously crafts Princess Mononoke (1997), each frame a testament to decades of artistic mastery and a philosophy rooted in pacifism, ecological reverence, human dignity, and resistance to consumerism. By 2024, this vision will be replicated on X through AI-generated images of lush landscapes and ethereal figures that echo Ghibli’s aesthetic yet lack its purposeful soul. Concurrently, cartoonist Sarah Andersen confronts the unauthorized appropriation of her distinctive comic style by Stable Diffusion, her creative identity reduced to uncredited algorithmic outputs.

This phenomenon transcends technological innovation, raising profound legal and ethical questions. As copyright systems in the UK, EU, and US grapple with AI’s non-human authorship, they reveal a critical misalignment between statutory intent and modern reality. Can these frameworks adapt to protect the human essence of art epitomised by Ghibli’s principled vision against the systematic challenge posed by generative AI?

Legal frameworks under examination

UK copyright law: A framework under pressure

The Copyright, Designs, and Patents Act 1988 (CDPA) establishes protections for “original artistic works” (s.1(1)(a)), granting authors exclusive rights to control reproduction, adaptation, and distribution (ss.16–20). Infringement hinges on appropriating a “substantial part”, a qualitative standard clarified in Designers Guild Ltd v Russell Williams [2000] 1 WLR 2416. The House of Lords held that this includes both literal copying and the “look and feel” of a work, potentially applicable to AI-generated Ghibli-style images.

However, AI developers invoke the idea-expression dichotomy, upheld in Baigent v Random House [2007] EWCA Civ 247, arguing that style or thematic inspiration falls outside copyright protection. This defence is contested by Temple Island Collections Ltd v New English Teas [2012] EWPCC 1, which protects aesthetic arrangements. Ghibli’s deliberate fusion of anti-consumerist narratives and visual coherence arguably meets this threshold, suggesting a basis for protection against AI mimicry.

Section 9(3) of the CDPA further complicates the issue, attributing authorship of computer-generated works to the person arranging for their creation. In the context of AI, where training datasets are vast and often scraped without consent, this attribution becomes untenable. The case of Getty Images v Stability AI [2023] EWHC challenges the legality of mass scraping under s.17(2), highlighting the lack of clarity on data provenance, leaving artists vulnerable.

Despite these challenges, UK law continues to confront the issue head-on, with some legal scholars proposing that AI-generated works be viewed through a lens of fair use or transformative rights, which could offer a more balanced approach. Others argue that additional protections should be established to address the evolving nature of artistic authorship in the AI age.

EU copyright law: A doctrine misaligned

The EU’s copyright regime, anchored in Directive 2001/29/EC (InfoSoc Directive), requires protection based on the “author’s intellectual creation” (Infopaq International A/S v Danske Dagblades Forening, C-5/08). Ghibli’s works exemplify this, with Miyazaki’s pro-humanity ethos and ecological advocacy. AI-generated facsimiles, however, lack a human author, exploiting a doctrinal gap that undermines this foundation.

The Court of Justice’s ruling in Painer v Standard Verlags GmbH (C-145/10) protects stylistic choices reflecting an author’s personality, yet AI outputs derived from aggregated data challenge this precedent. The EU AI Act (Regulation 2024/1689) mandates data usage disclosure, but its enforcement mechanisms remain superficial, offering limited protection for artists. The current regulatory framework struggles to maintain the balance between allowing AI-driven innovation and preserving the authenticity of artistic authorship.

In practical terms, the lack of data transparency by AI companies poses a significant challenge to the effective enforcement of existing regulations. While some suggest that the AI Act could be a step forward, its applicability to art and creative industries remains unclear and may require further revisions to adequately address AI’s potential to mimic existing styles without permission.

US copyright law: A system unprepared

US copyright law demands human authorship, a principle established in Burrow-Giles Lithographic Co. v. Sarony (1884). The Copyright Office’s 2023 decision on Zarya of the Dawn codifies this, denying protection to AI-generated works. However, this stance leaves rights holders without recourse, particularly concerning the appropriation of existing styles like Ghibli’s anti-war landscapes.

AI developers exploit the Feist Publications v. Rural Telephone Service (1991) low originality threshold, claiming their outputs transform rather than copy, despite relying on copyrighted inputs. In Andersen v Stability AI (2023), secondary liability is explored, but proving infringement remains difficult due to AI firms’ non-disclosure of data . California’s AB 2013 (2024) mandates AI art transparency, yet federal law remains silent.

Despite these obstacles, recent cases, including Nichols v Universal Pictures (1930), have begun to explore how AI-generated works might be treated under US copyright law, though the absence of clear guidelines leaves both artists and developers in a state of uncertainty. As the technology continues to advance, legal experts are calling for a more robust framework that can handle the complexities of AI-driven creativity.

Ethical dimensions: The value of human intent

Studio Ghibli’s creative process reflects a labour of intent. The Tale of the Princess Kaguya (2013) required 14 months of hand-drawn animation, each frame embodying a commitment to peace, ecology, and anti-consumerism . Miyazaki’s rejection of AI art as “an insult to life” resonates with Jung’s view of art as a psychological expression of the human soul, an act irreducible to algorithms. Sarah Andersen’s distress, “my identity, digested by a machine,” highlights the violation of creative agency when her style is mechanized without consent.

The intentionality behind human art is a critical element that AI-generated works cannot replicate. While AI can generate content that mimics existing styles, it lacks the deeper emotional and philosophical contexts that underpin human creation. This absence of agency raises ethical questions about authenticity, responsibility, and the commodification of art in an AI-driven landscape.

Judicial precedents: Seeking clarity

In the UK, Temple Island (2012) protects aesthetic coherence, while Designers Guild (2000) clarifies the “substantial part” standard. In the EU, Painer (2011) safeguards stylistic individuality, while Football Dataco (2012) defends curated effort. In the US, Nichols (1930) fails against AI’s complexity, though Getty v Stability AI (2023) signals a judicial shift toward accountability.

A call for reform: Strengthening legal protections

The UK’s CDPA revisions are stalled, the EU’s AI Act lacks enforceable specificity, and US federal law lags. Current frameworks, built for human authorship, fail to address AI’s appropriation of thematic essence, exposing a critical regulatory gap. Several reforms could help bridge this gap, ensuring artists are better protected while allowing for the responsible use of AI in creative industries.

Proposed Reforms

1. 1. Mandatory data transparency: Require AI developers to submit training dataset inventories to public registries, verified biannually. Non-compliance should incur fines.
   2. Strict liability standards: Impose liability for unlicensed use of copyrighted styles, with statutory damages tied to commercial exploitation.
   3. Redefining ‘substantial part’: Expand the term to include thematic consistency and philosophical intent.
   4. Artist empowerment mechanisms: Create opt-in registries for creators to license or prohibit AI use of their works.

These reforms shift the burden to AI developers, ensuring artists retain control over their creative legacies.

Conclusion: Upholding the human core of art

The proliferation of AI-generated Ghibli-style images exposes the inadequacies of copyright law in confronting non-human authorship. Yet, the resilience of human creativity persists in its intentionality, vividly embodied in Ghibli’s rejection of war, reverence for nature, celebration of humanity, and critique of consumerism. These principles forged through deliberate labour distinguish art from mechanical imitation. Legal systems must transcend reactive measures and adopt robust transparency and accountability, ensuring creativity remains a human endeavour.

Mohammad Anas is an aspiring solicitor who recently completed his LLB from the University of Leeds, with a strong interest in corporate law, banking and finance, and intellectual property.

The Legal Cheek Journal is sponsored by LPC Law.