The Round Up: Use of personal data, the re-detention of foreign criminals, and betting on the National Lottery

20 November 2018 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

Max Hill QC. Credit: The Guardian

In the News:

Max Hill QC, the new Director of Public Prosecutions (‘DPP’), has said that rape victims’ mobile phones will no longer be seized “as a matter of course”.

His comments come in the wake of allegations that prosecutors are increasingly making demands to access victims’ personal data. The Association of Police and Crime Commissioners suggested that the CPS been pushing investigators to make more invasive searches, even if officers are satisfied that they have pursued all reasonable lines of inquiry. This may be part of an effort to improve conviction rates.

Big Brother Watch wrote to the Information Commissioner’s Office (ICO) last week arguing against this trend. The campaigning group said it was becoming ‘routine’ to download the contents of sexual offence victims’ phones, and that the information could legally be stored for 100 years. In response, the ICO is considering widening its investigation into the use of victims’ information. It also spoke out against accessing rape victims’ mobile phone data and personal records.

Max Hill QC says that he aims to boost public confidence in the CPS and would improve the disclosure of evidence in criminal trials. The organisation has been struggling under 25% budget cuts and revelations of recent disclosure failings.

In Other News….

• A couple were found guilty of being members of National Action, a banned terrorist group. The organisation was set up in 2013, but after it celebrated the murder of Jo Cox MP it became the first far-right group to be outlawed since World War 2. The defendants decided to continue operations under a rebranded name. The court heard how their child was given the middle name Adolf, that Mr Thomas dressed up as a Ku Klux Klan member and admitted being racist. Various pieces of Nazi memorabilia were found at the defendants’ home, including flags, clothes, and a pastry cutter in the shape of a swastika. Police have described the extreme group as being a “dangerous, well-structured organisation” which had researched how to make explosives and had acquired weapons. The BBC reports here.
• The Supreme Court has agreed to hear the government’s appeal concerning a new legal challenge to the Brexit process. The Scottish courts had referred the question of whether the UK can reverse out of Article 50 to the CJEU. The Department for Exiting the European Union seeks to overturn the decision, so that the matter can be decided domestically. Given that the CJEU is set to consider the matter later this month, the Supreme Court would have to act quickly. Bloomsberg reports here.
• The Guardian reported that police chiefs are attempting to lower the threshold for stop and search. At present, officers must have “reasonable grounds” to conduct a search. However, concern over the recent increase in knife crime has led police to suggest that this restriction should be removed. Discussions were held with the Home Secretary in the last two weeks about the proposal. The revelation is likely to fuel debate over the disproportionate effect of stop and search on ethnic minorities.

In the Courts:

• Navalny v Russia: The Grand Chamber of the ECHR ruled that the repeated arrest of Mr Navalny, the Russian opposition leader, was politically motivated. The applicant complained that seven arrests and two pre-trial detentions were unjustifiable and violated Article 5 ECHR. The Court agreed. It stated there was no reason to take the applicant to a police station three hours away for the purpose of creating administrative offence reports, when the documents could have been drawn up in the police van. The detention was, therefore, unjustified and arbitrary. The Court also ruled that the applicant had not had a fair trial, contrary to Article 6 ECHR. This was because the courts had refused to call the witnesses requested by him, and on five occasions refused to admit video evidence of his arrest.  In addition, in six cases the domestic courts based their judgments solely on the version of events put forward by the police and failed to check its veracity. The Court further held that the applicants right to freedom of peaceful assembly (as guaranteed by Article 11 ECHR) had been violated. The restrictions failed to pursue a legitimate aim and the respondent State had failed to show that the restrictions were necessary in a democratic society.
• The Secretary of State for the Home Department v Lucas, R (On the Application Of): The appeals concerned the lawfulness of re-detention of foreign criminals, who are the subject of a deportation order and on immigration bail. The respondents were re-detained for an interview by Nigerian officials at a detention centre, in order to secure emergency travel documentation which would facilitate their removal. The Court of Appeal ruled that the immigration bail was not still operative by the time of re-detention because they had previously surrendered to it. Instead, their re-detention occurred via the general power to detain individuals subject to a deportation order. The Secretary of State’s action was, therefore, not unlawful. The Court also held that detaining an individual for the purpose of securing his attendance at documentation interview did comply with the Hardial Singh The Secretary of State intended to deport the respondents, only detained them for a reasonable time, acted with reasonable diligence and thought he would be able to deport them within a reasonable period.
• EU Lotto Ltd & Ors v Secretary of State for Digital, Culture, Media and Sport: The claimants challenged the Secretary of State’s decision to lay the Gambling Act 2005 Regulations 2018 (“the Regulations”) before Parliament. Betting on the outcome of the National Lottery is banned in the UK. However, betting companies have historically avoided the prohibition by operating from outside the UK. The Regulations seek to close this loophole. The Administrative Court ruled that the Regulations did not impose an unlawful restriction on the claimant’s freedom to provide services (established by Article 56 TFEU). There were established policy grounds for the restriction and the proportionality test was satisfied. The Court further ruled that the Secretary of State did conduct a fair and lawful consultation on the Regulations. It rejected the claimant’s argument that the Secretary of State had taken into account a policy justification which was not disclosed to consultees. It held the policy ground was not an operative reason for the introduction of the Regulations, and that in any event it fitted into the overall proportionality assessment. Claim dismissed.

On the UKHRB

• Jonathan Metzer has written about Rhuppiah v Secretary of State for the Home Department.
• David Hart QC covered the EU Draft Withdrawal Agreement.
• Leanne Woods explained the Divisional Court’s decision in Solicitors Regulation Authority v James, MacGregor and Naylor [2018].
• Thomas Beamont posted on Banks v Revenue and Customs Commissioners, where the Tax tribunal ruled that Arron Banks suffered political discrimination.

On Law Pod UK:

Emma-Louise Fenelon talks with 1 Crown Office Row’s Alasdair Henderson about how the UK is tackling issues of human trafficking and modern slavery, both within its own borders and internationally: Episode 50

Emma-Louise Fenelon talks with Suzanne White, the head of clinical negligence at Leigh Day Solicitors, about recent developments with regards to women’s rights in healthcare and informed consent in the context of childbirth: Episode 49

Events:

• The 30th Anniversary of the Bangalore Principles on the Domestic Application of International Human Rights Norms, 20^th November, the Bingham Centre for the Rule of Law. More here.
• Service user, carer and family member human rights training, December 7^th, The British Institute of Human Rights. More here.
• Rethinking Human Rights: a southern response to western critics, 10^th December, the LSE. More here.
• Stand Up for Human Rights: 70 years of the Universal Declaration of Human Rights, 10^th December, the Regent’s University London. More here.

If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor at jonathan.metzer@1cor.com