Human rights claims against undercover police to be heard in secret – Simon McKay

Mark Kennedy

Mark Kennedy

AKJ & Ors v Commissioner of Police for the Metroplis & Ors [2013] EWHC 32 (QB) – Read judgment

The High Court has ruled that the Investigatory Powers Tribunal was the exclusive jurisdiction for Human Rights Act claims against the police as a result of the activities of undercover police officers, authorised as Covert Human Intelligence Sources, where such conduct was not a breach of a fundamental right. The Tribunal did not have jurisdiction to determine proceedings brought by Claimants at common law.  

The decision of AKJ and related litigation is the latest instalment of the fallout from the activities of undercover police officer or Covert Human Intelligence Source (CHIS) Mark Kennedy and another police officer.  Kennedy infiltrated environmental protest groups including those that resulted in convictions following events at Ratcliffe on Soar power station. The convictions were later quashed following revelations about Kennedy’s activities which included allegations he had engaged in sexual relationships with a number of female protestors and other prosecutorial impropriety: R v Barkshire [2011] EWCA Crim 1885 (UKHRB post). A number of those affected by Kennedy’s actions subsequently brought claims in tort (for example alleging deception) and under the Human Rights Act 1998.

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UK not doing enough to combat human trafficking and domestic slavery

C.N. v. THE UNITED KINGDOM – 4239/08 – HEJUD [2012] ECHR 1911 – read judgment here.

The European Court of Human Rights recently held that the UK was in breach of Article 4 of the European Convention on Human Rights by failing to have specific legislation in place which criminalised domestic slavery. 

Thankfully Article 4 cases (involving slavery and forced labour) are rare in the UK. Indeed this is only the fifth post on this blog about Article 4, which perhaps shows just how few and far between they are, and the UK has a proud history of seeking to prevent slavery. Although British merchants and traders, to their great shame, played a major part in the trans-Atlantic slave trade throughout the 1600s and 1700s, Britain was then at the forefront of the abolition of the slave trade and slavery from 1807 onwards and the common law has always considered slavery to be abhorrent (as the famous case of ex parte Somersett in 1772 made clear).

Tragically, however, slavery has not been consigned to the history books. Across the world new forms of slavery are prevalent. The International Labour Organisation estimates that there are a minimum of 12.3 million people in forced labour worldwide, and one particular form of modern slavery – human trafficking –  is one of the fastest-growing forms of human rights abuse. The UK, as a major destination country for trafficking victims, is not immune from this trend.

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High Court calls for joined-up thinking on disclosure of sex offender information

X (South Yorkshire) v Secretary of State for the Home Department and Chief Constable of Yorkshire  [2012] EWHC 2954 (Admin)- read judgment

The High Court has made an important ruling about the disclosure of information under the Child Sex Offender  Disclosure Scheme (CSOD).

This non statutory arrangement has been in place since March 2010. It  allows members of the public to seek details from the police of a person who has some form of contact with children with a view to ascertaining whether that person has had convictions for sexual offences against children or whether there is other “relevant information” about them which ought to be made available. This request could come from any third party such as a grandparent, neighbour or friend. The  aim of the scheme is described thus:

This is to ensure any safeguarding concerns are thoroughly investigated. A third party making an application would not necessarily receive disclosure as a more appropriate person to receive disclosure may be a parent, guardian or carer.  In the event that the subject has convictions for sexual offences against children, poses a risk of causing harm to the child concerned and disclosure is necessary to protect the child, there is a presumption that this information will be disclosed.

Anya Proops’ post on the Panopticon blog sets out a clear summary and analysis of the ruling by the President of the Queen’s Bench Division and Hickinbottom J. Here are a few more details about the judgment. Continue reading

Azelle Rodney Inquiry lawyers can see surveillance film footage

R (on the application of the Metropolitan Police Service) v the Chairman of the Inquiry into the Death of Azelle Rodney and Interested Parties [2012] EWHA 2783 (Admin) – read judgment

The public inquiry into the death of Azelle Rodney, which commenced in 2010, was still under way when it was interrupted by the present dispute. It concerned the issue whether police surveillance footage taken from the air, showing Azelle Rodney’s movements in the two hours before his death, should be disclosed to the legal team representing his mother at the Inquiry.

The Chairman of the Inquiry decided to permit disclosure and the Metropolitan Police Service (MPS) took these proceedings to challenge the decision.

The footage was shot during a 2005 drug heist operation involving Mr Rodney, 25, who was shot six times at point-blank range after a car chase. One of the issues of importance to the deceased’s mother (Ms Alexander, the First Interested Party)  was whether there had been a better opportunity to stop the car and its occupants at any time before the hard-stop which resulted in Mr Rodney’s death. This issue involved consideration by the Inquiry of the management of the surveillance/stop operation by senior officers. The officer in charge of the operation is due to give his evidence and to be questioned by Ms Alexander’s counsel.  Continue reading

Contractual security vetting by the police: public or private law?

A, R (o.t.a A) v. Chief Constable of B Constabulary [2012] EWCA 2141 (Admin), Kenneth Parker J, 26 July 2012, read judgment

The public/private divide still gets lawyers excited, even in an Olympic summer, and for good reason – my image is simply to cool the fevered brow of those fresh from the stadium or the beach. Now for the problem met head on in this case. Generally speaking, parties to a contract may treat the others how they please, as long as that treatment does not offend the terms of the contract or specific consumer protection rules. But, equally generally, a public body is obliged to treat others in accordance with public law rules of fairness, and can challenge unfairness by judicial review. And this case is a good example of the intersection between these principles.

A had run a breakdown recovery service for the police for some years. The police then interposed a main contractor, FMG, who awarded the contract to A for the continuation of the job, now as a subcontractor. But the sub-contract, understandably enough, provided that its award was subject to vetting by the police. And the police then refused to give A clearance. Why? The police would not say, even when A threatened proceedings. And they said that they did not have to. Their line in court was that it was all governed by the contract, and the courts had no business in poking its nose into their reasoning – in the jargon, it was non-justiciable. They relented to some extent in the course of the proceedings, by giving some information, but still said that they were not obliged to do so.

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Police retention of photographs unlawful, High Court rules

The Queen, on the application of (1) RMC and (2) FJ – and – Commissioner of Police of the Metropolis. Read judgment.

Liberal societies tend to view the retention of citizens’ private information by an arm of the state, without individuals’ consent, with suspicion. Last week, the High Court ruled that the automatic retention of photographs taken on arrest – even where the there is no prosecution, or the person is acquitted – for at least six years was an unlawful interference with the right to respect for private life of Article 8 of the ECHR, as enshrined in the Human Rights Act.

The case was brought by two individuals. One, known as RMC, was arrested for assault occasioning actual bodily harm after she was stopped riding a cycle on a footpath. The second, known as FJ, was arrested on suspicion of rape of his second cousin at the age of 12. In both cases, the individuals voluntarily attended the police station, where they were interviewed, fingerprinted and photographed and DNA samples were taken form them, but the CPS decided not to prosecute.

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European Court got it right on mental health detention delay – Martha Spurrier

This piece is in response to Rosalind English’s post on this blog arguing that in M.S. v United Kingdom the European Court extended to far the ambit of Article 3 of the European Convention on Human Rights (ECHR), which protects against torture, and inhuman or degrading treatment. This post argues that the European Court’s ruling is both a logical step in the jurisprudence and a welcome one for the protection of those with mental health problems in state detention. 

M.S. v United Kingdom identifies a gap in the provision of crisis mental healthcare for those in state detention that has long been recognised by lawyers, campaigning organisations, carers, service users, the police and healthcare providers. The judgment is a welcome recognition of two things: first, that a prolonged and acute mental health crisis while in state detention can amount to degrading treatment for the purposes of Article 3 ECHR. And second, that the state is responsible when delays in the provision of psychiatric care to those in detention cause someone with mental health problems to descend into a crisis that is degrading and undignified.

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