Round Up: Should short term jail sentences be abolished? Plus rulings on Universal Credit and judicial pensions.

14 January 2019 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

In the News:

Credit: The Guardian

The Government is considering whether to abolish prison sentences lasting six months of less.

Rory Stewart, the Prisons Minister, has argued that short jail terms are only serving to increase crime by mixing minor offenders with hardened criminals. He cited research suggesting that community sentences may help reduce the risk of reoffending when compared to short term prison sentences.

In Scotland there is already a presumption against such sentences. Re-offending has fallen to its lowest level for nearly two decades and the Scottish government are looking to widen the scheme.

The change would impact upon around 30,000 offenders, helping alleviate pressure on the overburdened prison system. Exceptions would be made for offenders who were violent or had committed sexual crimes.

The suggestion has already proven controversial. The Ministry of Justice has emphasised it is only exploring options and no decision has been made.

In Other News….

• Nazanin Zaghari-Ratcliffe will go on hunger strike this week. Mrs Zaghari-Ratcliffe was arrested in Tehran’s airport in April 2016 and subsequently sentenced to five years in jail for spying. Mrs Zaghari-Ratcliffe has described her treatment as “inhuman” and stated she will be striking in protest at being denied access to a doctor. The human rights activist Narges Mohammadi will be joining her. The strike is due to start on Monday and will last for three days. However, the pair have said that if the authorities continue to deny access to a doctor then further action will be taken. Richard Ratcliffe, Nazanin’s husband, has said that she is particularly concerned by lumps in her breasts. Iranian state TV released footage of Mrs Zaghari-Ratcliffe being arrested earlier in the week. It also accused her of “plotting to topple the Iranian regime”. (The Guardian reports here).
• MPs have called upon the police to take greater action in order to protect their safety. Increasing number of protesters have been gathering outside Parliament. On Monday, Anna Soubry MP was abused and called a Nazi by a small group of protesters outside Parliament. James Goddard, a far-right pro-Brexit activist was arrested on Saturday. The CPS confirmed three cases of alleged harassment have been referred to it, and that it will be considering whether the behaviour went beyond legitimate protest. Police have confirmed that more officers have been deployed in the area. They say they are trying to balance the people’s right to go about their business against the right to lawful demonstrations. (The BBC reports here).

In the Courts:

• ARB v IVF Hammersmith & Anor: The claimant sought damages for breach of contract against the respondent IVF clinic. The clinic had implanted an embryo containing ARB’s gametes into his ex-partner (“R”). However, it did so on the basis of a signature that R had forged. The Family Court had previously ruled that the clinic was liable for breach of contract. However, it went on to rule that, as a matter of policy, ARB could not recover damages for the cost of his daughter’s upbringing.  The Court of Appeal agreed. It stated that regarding a child as a financial liability would be morally unacceptable. This principle applies equally to the tort and contract law. The Court of Appeal also ruled that the procedures for obtaining informed consent at the clinic were not only illogical, but made a mockery of the need for consent. Rosalind English has examined the case in detail here. Jeremy Hyam QC and Suzanne Lambert from 1 Crown Office Row acted for the respondent clinic.
• Johnson & Ors, R (On the Application Of) v Secretary of State for Work And Pensions: This case concerned the proper method of calculating the amount of universal credit payable to each claimant under the Universal Credit Regulations 2013 (“the Regulations”). The amount payable is determined by the income a person receives during a one-month assessment period. However, the procedure by which the claimants were paid meant there were occasions when two months’ worth of salary would be paid within one assessment period. This resulted in two months’ salary being deducted from their payments. The High Court ruled that the DWP had been interpreting the Regulations incorrectly. The Court took a purposive approach to Regulations 54, which states that payments are “to be based on” the income received in the assessment period. The Court concluded that the phrase “to be based on” indicated assessments may sometimes need to be adjusted to reflect the money earned during the assessment period. This reading accorded with the realities of monthly payments and avoided fluctuations in universal credit payments.
• The Lord Chancellor & Anor v McCloud & Ors:  The case was a combined appeal, concerning changes to the pension schemes of judges and firefighters. The Court of Appeal stated that the government had to establish a legitimate reason for age discrimination. Whilst the government was to be afforded a margin of discretion, the tribunal had to assess whether the aim was legitimate and the amount of discretion it should be given. In relation to the first appeal, the Court upheld the tribunal’s decision that the respondents had failed to show their treatment was a proportionate means of achieving a legitimate aim. With regard to the second appeal, the Court said that the government’s changes to firefighters’ pensions needed to be supported by evidence. A general moral aim of protecting older firefighters was insufficient. The Court went on to consider equal pay and indirect race discrimination in relation to both appeals. It held there was such discrimination and, as already stated, there was no legitimate reason for this treatment.

On the UKHRB

• Rosalind English has written an article examining ARB v IVF Hammersmith in detail.
• Jonathan Metzer summarised the 10 most important Human Rights cases of 2018.
• Owain Thomas QC explained Sait v GMC, which concerned procedural fairness in relation to cross-examination.
• Martin Downs wrote about the possibility of using an additional referendum as a way of overcoming the Brexit impasse.
• David Burrows considered whether English marriage laws are compliant with the ECHR.
• A number of new Law Pod UK  episodes have been released, including: “Doctor knows best?”; “The cases that defined 2018”; and “2018 Inquest law update”.
• This afternoon a new episode of Law Pod will be posted, featuring a discussion between presenter Emma Fenelon and Mrs Justice Whipple about the US Supreme Court Judge Ruth Bader Ginsburg, and the recently released documentary about her.

Events:

• Having your cake and eating it: Reflections on Ashers and Masterpiece, 23^rd January, at UCL Faculty of Laws. More here.
• The 30th anniversary of The Children Act 1989: Is it still fit for purpose?, 31^st January, at the Museum of 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