Round Up 10/03/19: Criticism of cabinet ministers and a glut of judgments in the senior courts…

11 March 2019 by Thomas Hayes

Home Secretary Sajid Javid. Credit: The Guardian

After some quieter times earlier in the year, last week saw no fewer than two Supreme Court judgements and twenty Court of Appeal (Civil Division) decisions.

However, the dominant legal and political story of the week (the ubiquitous Brexit aside) concerned criticism of the Home Secretary Sajid Javid, after reports emerged about the death of the child of Shamima Begum. The 19-year-old left East London to travel to Syria and join the Islamic State aged 15. Javid had stripped Begum of her British Citizenship on the basis that she was a dual national of Bangladesh. News broke this morning that the Home Office had removed citizenship from a further two individuals who had left under similar circumstances.

The case of Begum has shed light not only on the rights and powers of the Home Secretary to strip individuals of citizenship, but also on the tragic consequences of armed conflict. Child mortality across the whole of Syria was four times that in the UK at 17 per 1000 live births in 2017, with the situation in refugee camps likely far worse given the absence of heating or adequate shelter. Ms Begum’s son appears to have died of pneumonia, an easily preventable disease which remains the biggest killer worldwide of children under five, accounting for 1.4 million fatalities a year. Whilst there may be debate as to the practical ability of the Foreign Office to provide consular assistance in war zones and the legality of her deprivation of citizenship, Ms Begum’s case illustrates the tragic realities of armed conflict and its consequences upon innocent lives.

In a potentially bad week for cabinet ministers, criticism also flowed the way of Karen Bradley, Secretary of State for Northern Ireland, after she described deaths caused by the police and armed forces in Northern Ireland as “not crimes”. The comments caused consternation amongst nationalists and the relatives of those who had lost their lives and comes ahead of an expected announcement by the Public Prosecutions Service as to whether it will seek prosecutions against soldiers in relation to the deaths of 13 people in Derry on Bloody Sunday.

Returning to the courts, in the Supreme Court…

• KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10. The Supreme Court allowed an appeal in the case of a Sri Lankan Tamil who had been refused asylum on the basis that burn wounds to his back and arms had been self-inflicted. The Supreme Court held that proper weight must be given to the inherent unlikelihood of such a suggestion.
• Jordan, Re for Judicial Review (Northern Ireland) [2019] UKSC 9. In a further legacy case arising from the conflict in Northern Ireland, the Supreme Court allowed the appeal of the father of a man shot dead by the Royal Ulster Constabulary, overturning the finding of the Court of Appeal that his claim for damages in relation to delays to his son’s inquest could not be awarded until the inquest’s conclusion. The Police Service of Northern Ireland had failed to disclose information in a timely manner to the inquest into the death of his son, in breach of the requirement under Article 2 of the European Convention on Human Rights that an investigation into a death should begin promptly and proceed with reasonable expedition. Applying the principle of proportionality to the case, particularly given the fading health of the claimant, the Supreme Court overturned the Court of Appeal decision and awarded him the damages sought.

Meanwhile, the Court of Appeal gave judgment this week in nine cases with a human rights flavour. Given the volume, only some of the more interesting are summarised below:An application for judicial review into the Home Office’s guidance regarding its counter-terrorism “Prevent” strategy, in particular that in relation to speakers at universities and the collecting of data by the Home Office’s Extremism Analysis Unit, was largely rejected in Butt, R (On the Application Of) v The Secretary of State for the Home Department. The appeal against the initial decision to dismiss the application was brought by Dr Salman Butt, editor in chief of “Islam21C”, who has been labelled a “hate speaker” by the Prime Minister’s Office and Home Office. Mr Butt had alleged interference with his right of free speech under both the common law and Article 10 of the European Convention on Human Rights, as well as his privacy rights under Article 8.

The Home Office successfully appealed in the case of a Liberian gentleman who had sought a permanent residence card by virtue of his durable relationship with a Czech national. His appeal against the Secretary of State’s rejection of his application had been upheld in the first-tier and upper tribunals. The Court of Appeal however agreed with the Home Office that his entitlement to a permanent residence card only arose five years after the initial granting of a residence card, and did not take effect from an earlier date when he may have been in the country or in a relationship with an EU citizen: Secretary of State for the Home Department v Aibangbee [2019] EWCA Civ 339. The Home Office had continued the appeal to secure the point of law despite the case becoming moot as between the parties, enough time having expired by the time of the hearing to make Mr Aibangbee eligible.

An appeal by the newspaper group MGN limited against the decision of a High Court judge not to vary the terms of an order requiring early disclosure was rejected: Various Claimants v MGN Ltd [2019] EWCA Civ 350. The newspaper group had submitted that the order gave rise to a real risk, in the case of one claimant, that it would have to disclose material which would reveal the identity of a confidential journalistic source, contrary to protections enjoyed by publishers under section 10 of the Contempt of Court Act 1981.

A prisoner convicted of terrorist offences, namely plotting to behead a member of the public around the time of Armistice Day 2015, who alleged that his transfer to a “Managing Challenging Behaviour Unit” constituted a “removal from association” with other prisoners had his appeal dismissed. The Court similarly dismissed the Secretary of State for Justice’s cross-appeal against the findings of an earlier court that such restrictions did amount to an interference with his right to respect for private life under Article 8(1) of the European Convention on Human Rights and therefore required justification under Article 8(2): Syed v The Secretary of State for Justice [2019] EWCA Civ 367.