Tribunal Administrative de Strasbourg, N°2003058 M. A. et autres
M. Simon, Juge des référés
Ordonnance du 25 mai 2020
This judgment was handed down over two months ago but its relevance to the current rules on face masks in the UK makes for interesting reading. It is available only in French.
A group of individuals brought a challenge to a decree issued by the mayor of Strasbourg obliging citizens over the age of eleven to wear facemarks in the streets and other areas, in particular the Grande-Ile (an island in the centre of Strasbourg), from 10am – 8pm, enforceable by a fine. The obligation was in force from May 21 to 2 June.
The claimants argued that the decision undermined freedom of movement, the right to protection of health, and the right to respect for private and family life under Article 8 of the ECHR. They contended that the decree was outwith the powers of the mayor since police measures relating to health emergencies were reserved to the national authorities and the préfets de département. This decree was, they said, unjustified and disproportionate.
The municipality of Strasbourg argued that the decree was strictly limited in time and space and was therefore proportionate to the specific local circumstances of the area. Referring to the French legal code relating to public authorities, administrative justice and public health, and the lockdown law passed on March 23 2020, the respondents argued that this emergency law allows, amongst other things, the prime minister to regulate or prohibit the movement of people unless strictly essential for the needs of health or family.
The gravamen of the claimants’ argument was that the mayor’s decree had gone beyond his power to issue it. The court clarified that the mayor had been entitled to exercise his municipal police power to prevent and reduce the effects of the covid epidemic. Under French law, a municipal mayor can only act on these two conditions:
there are “compelling reasons” linked to local circumstances
and these measures do not compromise the consistency and effectiveness of the measures already taken by the State.
The claimants relied on article (521-2) of the Code of Administrative Justice which reads:
On receipt of a request justified by urgency, the interim relief judge may order any measures necessary to safeguard a fundamental freedom which a legal person governed by public law or a private-law body responsible for managing a public service has, in the exercise of one of its powers, seriously and manifestly unlawfully infringed. The interim relief judge shall give a ruling within 48 hours.
The emergency law of 23 March 2020 that was introduced to deal with the covid-19 epidemic says that
A state of health emergency may be declared in all or part of the territory (…) in the event of a health disaster which, by its nature and seriousness, endangers the health of the population.
According to the terms of Article L. I of the Code. 3131-15 of the same code, in the territorial districts where a state of health emergency is declared, the Prime Minister may, in particular, for the sole purpose of guaranteeing public health : “1° Regulate or prohibit the movement of persons and vehicles and regulate access to means of transport and the conditions of their use
other powers to restrict movement and enforce quarantine follow. Under the terms of I of Article L. 3131-17 of this Code:
When the Prime Minister or the Minister responsible for health takes the measures mentioned in Articles L. 3131-15 and L. 3131-16, they may authorise the representative of the territorially competent State to take all general or individual measures for the application of these provisions.
As far as the mayor’s jurisdiction is concerned, here are the terms of article L. 2542-3 of the General Code of Local Authorities applicable in Alsace Moselle:
The mayor’s duties are to ensure that the inhabitants enjoy the advantages of good policing, in particular cleanliness, health, safety and tranquillity in the streets, places and public buildings. The mayor is also responsible for ensuring the tranquility, health and safety of the countryside.
The summary judge in this application ruled that the circumstances obtaining in Strasbourg revealed “no compelling reason” to justify the mayor’s decree obliging citizens to wear a mask.
Under these conditions, the decree [under challenge] …, which is a general administrative police measure taken by the mayor in addition to the special police measures taken by the state authorities, is not justified by any compelling reason related to to local circumstances specific to the municipality of Strasbourg
The court rejected the arguments of the Strasbourg municipality under Article L. 761-1 of the Code of Administrative Justice and suspended the Mayor’s decree of 20 May 2020.
This ruling is worth noting in that it recognises under the right to respect for private life a “freedom of physical appearance”. The decree under attack, which obliged Strasbourg citizens to wear a mask, was not considered by the judge to be justified by an overriding reason linked to a local circumstance:
Indeed the choices made as to the appearance that one wishes to have, in the public space as in private, relate to the expression of the personality of each one and thus of the private life.
As to the Article 8 right to respect for private life, the following observation from the judge shows the extent to which this ECHR provision can be stretched:
Indeed the choices made as to the appearance that one wishes to have, in the public space as in private, depend on the expression of the personality of each one and therefore of the private life.
The flexibility of the right to respect for private life as enshrined in Article 8 proved to be very useful for the claimants in this case. The judge upheld the right to respect for private life and freedom of physical appearance over the justifications advanced by the municipality.
For a broader discussion of the judgment and the important role of Article 8 and the recognition in law of the freedom of physical appearance, I recommend this post by Arnaud Gossement, which he concludes with this note:
any interference with this right to respect for private life that constitutes freedom of appearance is not necessarily illegal. It has to be justified by “an overriding reason linked to local circumstances”. In this case, in the judge’s view, the justification advanced was insufficient.
On 30 July 2020, the Crown Prosecution Service published its performance statistics on sexual violence cases for the year 2019-20, which vindicate long-held concerns about the “damning” number of cases being lost amid “under-resourced” investigations.
While police-recorded rape offences have more than doubled over six years, the statistics showed that the number of:
prosecutions for rape is down to its lowest level since annual recording began. It has dropped by 30% in the past year.
convictions for rape is also at its lowest level and has dropped by 25%. This is about half of what it was two years ago.
rape cases charged has risen slightly. However, it is still significantly less than the number recorded in the years leading up to 2018.
The response from the Victim’s Commissioner, Vera Baird QC, was emphatic and unequivocal: “What we are witnessing is the decriminalisation of rape.” Baird attributes the dramatic drop to the decision made by the Crown Prosecution Service director in September 2016 to remove so-called “weak cases” from the system. Baird asserts that this move raised the CPS’s evidential threshold, making it harder to charge a suspect and bring them into court.
The Guardian has now reported that Downing Street plans to set rape prosecution targets for police and the CPS. Similar internal targets set by the CPS between 2016 and 2018 were dropped for being “not appropriate” and acting as a “perverse incentive”.
The decision has been damned with faint praise by legal commentators and representatives from women’s charities.
While welcoming a well-overdue acknowledgement of the criminal justice system’s failures on rape, Katie Russell, the national spokesperson for Rape Crisis England and Wales, stressed that targets are a “blunt tool for dealing with a systemic problem.” Other concerns raised include that this approach may:
The attorney general’s office, the CPS and the police have not yet responded to questions about the proposed targets.
In Other News
Earlier this month, the Court of Appeal ruled that Shamima Begum should be allowed to return to the UK in order to have a fair and effective appeal against being stripped of her British citizenship. On Friday 31 July the Court of Appeal allowed the Home Office permission to appeal that ruling to the Supreme Court. The outcome will indicate where the UK stands on two fundamental issues: the right to appeal in person, and deprivation of nationality.
The Home Office agreed to stop using a computer algorithm to help decide visa applications, after the Joint Council for the Welfare of Immigrations and digital rights group Foxglove launched a legal challenge against it. The algorithm, which was characterised by Foxglove as offering “speedy boarding for white people,” was suspended on 7 August 2020. The decision is discussed in more detail on the UKHRB here.
The CPS has decided not to bring charges over the death of Belly Mujinga, a railway worker who died of Covid-19 after allegedly being spat on while at work, after tests found that the suspect had not been infected with the virus.
A number of stories have highlighted failures to protect the liberty of children. The treatment of some young people in detention, including those with disabilities, has come under fierce criticism in an annual report from the Lay Observers, volunteers who inspect court custody conditions and transport arrangements for detainees. BBC News has criticised the rapid increase in use of deprivation of liberty orders against children in care over the last two years. Finally, the MoJ’s rules around prison visits are being challenged on the basis that they breach children’s article 8 rights, and fail to properly safeguard their best interests under the Children Act 2004.
In the Courts
Avon and Wiltshire Mental Health Partnership v WA & Anor  EWCOP 37: in an unusually poignant July judgement, Mr Justice Hayden ruled in the Court of Protection that in the case of WA, attempts to persuade and encourage the young man to accept nutrition and hydration should be permitted “with far greater persistence than would be considered appropriate in the case of a capacitous adult.” However, if WA refused, his refusal should be accepted. WA’s refusal of food and water was connected to the Home Office’s replacement of what he believed to be his date of birth with a date several years older. This triggered an extreme sense of loss of autonomy, founded on traumatic childhood experiences of torture by Hamas and subsequent sexual abuse by foster parents in Italy. Mr Justice Hayden praised WA for remaining “the gentlest and most courteous of men” in spite of his experiences, and sought to restore his autonomy to him while safeguarding his health.
In response to a legal challenge brought by the Joint Council for the Welfare of Immigrants (JCWI), the Home Office has scrapped an algorithm used for sorting visa applications. Represented by Foxglove, a legal non-profit specialising in data privacy law, JCWI launched judicial review proceedings,, arguing that the algorithmic tool was unlawful on the grounds that it was discriminatory under the Equality Act 2010 and irrational under common law.
In a letter to Foxglove from 3rd August on behalf of the Secretary of State for the Home Department (SSHD), the Government Legal Department stated that it would stop using the algorithm, known as the “streaming tool”, “pending a redesign of the process and way in which visa applications are allocated for decision making”. The Department denied that the tool was discriminatory. During the redesign, visa application decisions would be made “by reference to person-centric attributes… and nationality will not be taken into account”.
The UK Human Rights Blog is committed to continuing to raise awareness of the vital issues that were brought to public attention in May and June. In this piece, we look at diversity at the bar, with particular focus on the commercial bar.
This article is largely an edited version of a piece which appeared in The Lawyer online in April this year and may be found here. We are very grateful to The Lawyer and to Harry Matovu QC for their kind permission to reproduce that content here.
Although a record number of black and Asian minority ethnic (BAME) barristers were awarded silk status this year (a total of 22), there is still a large diversity gap in the industry. BAME barristers accounting for just under 8 per cent of the QC population overall, according to the latest figures from the Bar Standards Board (BSB). Within the commercial bar, the representation of BAME barristers is particularly low, with only 8 per cent of barristers at a range of leading commercial sets being BAME.
The umbrella term of BAME also requires nuance. According to the BSB, of the 3,364 BAME barristers in this country, 1,497 are Asian or mixed, while 479 barristers are black. The difference is even greater at silk level; just 20 of the 149 BAME silks are black.
In a nutshell, therefore, BAME barristers as a whole are underrepresented, and under that umbrella, the representation of black barristers and silks is particularly low.
British SAS soldiers in Helmand province, Afghanistan. Credit: The Guardian
The final week of the legal term was set against the backdrop of new restrictions on the ability of different households to meet across a large part of northern England. The main restriction takes the form of a prohibition on individuals entering households other than their own to visit friends and family. As has become traditional over the last few months, the guidance was announced with a promise to bring forth new laws in the future, to confer actual powers of enforcement.
In addition, many of the week’s dominant news stories carried a prominent legal flavour:
The conviction and sentencing for manslaughter of Henry Long, Albert Bowers and Jessie Cole in relation to the death of PC Andrew Harper focused attention on homicide law and sentencing procedure. The case drew significant public interest amid concerns about the potential leniency of sentence and their acquittal for murder. Those with an interest in the case could do much worse than to read the sentencing remarks of Mr Justice Edis (here), which provide a clear and helpful insight into the considerations of sentencing in the case;
It was widely reported (including by The Guardian – here) that a High Court order has been served on the Defence Secretary, requiring that he explain the failure of the Ministry of Defence to disclose large volumes of material suggesting the department held concerns about a “rogue” SAS unit conducting the extrajudicial killings of Afghan civilians in 2011. A response is required by the autumn;
The Government announced the formation of an independent panel to examine the role of judicial review. The panel is to be chaired by Lord Faulks QC, former Minister of State for Civil Justice and Legal Policy under David Cameron. Interestingly, Lord Faulks wrote on the very subject back in February (here), where he commented that the decision of the Supreme Court to quash the Prime Minister’s prorogation of Parliament was an “historic mistake”.
The week also saw a number of interesting judgments…
Harrison & Ors, R (On the Application Of) v Secretary of State for Justice  EWHC 2096 (Admin) (31 July 2020). A judicial review brought by six couples who identify as humanists was dismissed by the High Court. The Claimants had sought a declaration of incompatibility under section 4 of the Human Rights Act on the grounds that the legal underpinnings of religious wedding ceremonies do not extend to weddings carried out in accordance with their beliefs. Whilst the court held that the law affords different individuals different rights on the basis of their religion, the Government was held to have demonstrated a legitimate aim in seeking to address such differences by way of a wholesale reform of the law of marriage, which is currently subject to ongoing review.
The High Court heard a judicial review of emergency legislation brought in response to terrorist stabbings at Fishmonger’s Hall and in Streatham – Khan, R (On the Application Of) v Secretary of State for the Justice Department  EWHC 2084 (Admin) (30 July 2020). Following the two incidents, the automatic early release provisions were suspended in respect of terrorist offenders, with early release made subject to the approval of the Parole Board. The court dismissed the Claimant’s case that the legislation was incompatible with articles 5, 7 and 14 of the European Convention on Human Rights.
The High Court has today handed down judgment in R (EA and Anor) v Chairman of the Manchester Arena Inquiry  EWHC 2053 (Admin) refusing permission for judicial review to a group of survivors who unsuccessfully sought core participant status in the forthcoming inquiry into the Manchester Arena bombing attacks. A full legal analysis of the decision will follow. This article provides a summary of the judgment and its context.
Inquiries and inquests into public disasters and terrorist attacks inevitably, and rightly, focus on those who died. But what of the many who are injured, and whose lives will be transformed as a result of the events? What role should they play in the public investigation that follows?
In three conjoined judicial reviews concerning the legality of the Home Secretary’s exercise of her power under paragraph 9 of Schedule 10 of the Immigration Act 2016 to provide accommodation to those who are granted immigration bail, Mr Justice Johnson held in R (Humnyntskyi) v SSHD  EWHC 1912 (Admin) that each of the three claimants had been unlawfully denied such accommodation, and that the relevant policy was systemically unfair.
In a judgment handed down on 1 April 2020, the Supreme Court reversed the decisions of Nicola Davies J (as she then was) and a unanimous Court of Appeal, allowing the appeal on the ground that no vicarious liability can lie for the acts of an independent contractor: Barclays Bank plc v Various Claimants (‘Barclays’). This was one of a pair of decisions, each concerned with a limb of the vicarious liability test: the requisite relationship (Barclays) and the necessary connection between that relationship and the wrongdoing (WM Morrisons Supermarkets plc v Various Claimants (‘Morrisons’)). While much could be said, to use the language of recent case-law, about whether this latest development means that vicarious liability is still ‘on the move’ (Various Claimants v Child Catholic Welfare Society (‘Christian Brothers’)), has ‘come to a stop’ (Cox v Ministry of Justice (‘Cox’)), or has even been thrown into reverse, this post will instead focus on the judgment’s implications for the test(s) for employment or worker status across various contexts. Although Barclays may bring a certain kind of clarity, or at least predictability, to future vicarious liability cases, it nonetheless blurs boundaries in several areas of law. Three of these will be addressed below.
Race and Rights in the UK: Do Black Lives Matter Today?
The recent killing of George Floyd at the hands of US authorities has sparked a global outcry, with individuals and organisations demanding accountability and an end to the racial oppression that black Americans face. Within the United Kingdom, a much-needed debate is also taking root in response to these events, which focuses on systemic racism that denies people their basic rights here. From discriminatory policing, to the racism inherent in the Windrush and Grenfell scandals as well as the disparate racial impacts of COVID-19, evidence of systemic racial injustice within the UK abounds.
Drawing on the knowledge and experience of our panellists, this event hosted by the Human Rights Lawyers Association (HRLA) tomorrow, will provide a forum to discuss some of these issues and recommend solutions in order to advance this debate at this critical juncture. Presentations will touch on the following four key areas as part of this discussion and will be followed by a live Q&A:
Laurie-Anne Power, 25 Bedford Row (Chair) Judge Peter Herbert OBE, Co-Founder BMELawyers4Grenfell, Chair of the Black Lawyers’ Society Dr Nishi Chaturvedi, Professor of Clinical Epidemiology at University College London Martin Forde QC, One Crown Office Row, Independent Adviser to the Windrush Compensation Scheme Zainab Asunramu, Activist and Writer Rohan Samuel, @poet_rs Spoken Word Poet
Event lead and Introduction: Tetevi Davi, HRLA Executive Committee
Enables ministers to use regulation to add to the list of possible ‘victims’ of hate crime. There are already suggestions that misogyny will be added.
The definition of hate crime is extended to include ‘aggravation of offences by prejudice’.
Creates a new crime of ‘stirring up hatred’ against any of the groups which the Bill protects.
Updates and amalgamates existing hate crime law.
Abolishes the offence of blasphemy.
In addition, a new offence of misogynistic harassment is being considered.
The Bill was created following Lord Bracadale’s independent review of hate crime law. Official figures show that hate crime is on the rise in Scotland and the Bill seeks to address this.
However, the Bill has caused considerable concern. Many have suggested that the Bill unduly restricts freedom of speech. The President of the Law Society of Scotland, Amanda Millar, said she had “significant reservations” and indicated that “views expressed or even an actor’s performance” could result in a criminal conviction.
Groups ranging from the Catholic Church to the National Secular Society have also spoken against the plans. The Scottish Newspaper Society expressed reservations.
Some have claimed that JK Rowling, who recently tweeted her views about transgender rights/ feminism, could be imprisoned for 7 years under the Bill. Opponents also point to the experience of Threatening Behaviour at Football and Threatening Communications Act 2012, which sought to target football hooliganism. The Act was later repealed due to concerns about freedom of speech and its ineffectiveness.
James Kelly, Labour’s justice spokesman, has pointed out that the Bill would not require ‘intention’ in order for criminality to be found. He suggested that religious views could be negatively affected by the proposals.
In response, the Scottish government points out that the Bill makes clear that criticising religious beliefs or practices does not, in itself, constitute a criminal offence. Ministers have also emphasised that the draft legislation seeks to protect minorities and oppressed groups.
Ms Sturgess tragically died of Novichok poisoning, having inadvertently opened a discarded perfume bottle containing the nerve agent. Her death came some four months after the highly publicised poisoning of Sergei and Yulia Skripal in Salisbury.
The recent ruling by the Supreme Court that the former leader of Sinn Féin had been unlawfully detained and convicted in the 1970s has elicited some severe criticism from high places, including former Supreme Court judge Jonathan Sumption. Matt Hill of 1 Crown Office Row discusses this case with Rosalind English in the latest episode of Law Pod UK. Matt has worked on a number of cases relating to the Troubles in Northern Ireland. He was involved as an in historian on the Bloody Sunday Inquiry, was junior counsel to the Inquiry on the recent Birmingham pub bombing inquests, and has written about the use of inquiries and inquests in dealing with the legacy of the Troubles. The discussion focusses on the so-called “Carltona” principle regarding the responsibility of ministers to consider each function of administration. Lord Sumption has said that the Supreme Court ruling in the Adams case has “left the law in an awful mess”.
In Sutherland v Her Majesty’s Advocate, the Supreme Court ruled unanimously that it was compatible with the accused person’s rights under ECHR article 8 to use evidence obtained by “paedophile hunter” (“PH”) groups in a criminal trial.
PH groups impersonate children online to lure persons into making inappropriate or sexualised communications with them over the internet, and then provide the material generated by such contact to the police. Importantly, they operate without police authorisation.
Per Section 6(1) of the HRA, a prosecution authority – as a public authority – cannot lawfully act in a way that is incompatible with a Convention right. Consequently, there were two compatibility issues on appeal before the Supreme Court:
Were the appellant’s article 8 rights interfered with by the use of the communications provided by the PH group as evidence in his public prosecution?
To what extent is the state’s obligation to provide adequate protection for article 8 rights incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime?
This case involved the ancient tort of public nuisance. Such a claim is addressed to behaviour which inflicts damage, injury or inconvenience on all members of a class who come within the sphere or neighbourhood of its operation. As Linden J explained, a person may bring an action in their own name in respect of a public nuisance
when they have suffered some particular, foreseeable and substantial damage over and above what has been sustained by the public at large, or when the interference with the public right involves a violation of some private right of the claimant. A local authority may also institute civil proceedings in public nuisance in its own name pursuant to section 222 Local Government Act 1972: see Nottingham City Council v Zain  1 WLR 607.
The case heading (partial screenshot above) provides a pretty comprehensive list of activities that would come within the category of “public nuisance”. I recall John Spencer’s immortal words from his article in the Cambridge Law Review on the subject in 1989:
Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common scold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance.
So as you can see, this tort encompasses quite a range of human enterprises.
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