The Weekly Roundup: Boris Johnson, Hong Kong, and Freedom of Religion on Social Media

8 July 2019 by

Image: Annika Haas

In the news

In Hong Kong, protests have continued against a proposed law allowing extradition of Hong Kong residents to China. On Monday 1 July, campaigners delivered a letter to the UK government, petitioning the government to change the status of the British National (Overseas) Passport to include an automatic right to live and work in the UK. The government has yet to formally respond to the petition. However, Foreign Secretary Jeremy Hunt has stated that he is ‘keeping his options open’, and threatened ‘serious consequences’ if China fails to honour the Joint Declaration treaty of 1984 (which stipulated the terms of the 1997 handover).

The use of facial recognition technology by the police has incurred something of a body blow, as an independent review has concluded that the police are operating on an ‘inadequate’ legal basis. The reviewers, a group of academics from the University of Essex, concluded that matches were only correct in 20% of cases, and found ‘significant ambiguity’ concerning the process for compiling watchlists of suspects.

This follows criticisms by the Information Commissioner, Elizabeth Denham, who has observed a ‘lack of transparency’, and by campaigning organisation Liberty, who have described the technology as ‘dangerously intrusive and discriminatory’. The police’s use of facial recognition software is already under judicial review in South Wales, and it seems likely that substantial reform will be required to comply with their human rights obligations. This may have implications for private organisations, such as casino and stadium operators, who make use of the same technology.

Meanwhile, the consultation for the Online Harms White Paper is ongoing. JUSTICE have submitted a response regarding prevention of harms involving sexual grooming of children, building on their June 2019 report Prosecuting Sexual Harms. Their recommendations include: (i) the use of pre-screening technology by ISPs, comparing images with known illegal images in the Child Abuse Image Database; (ii) the awarding of voluntary ‘quality marks’ for safe online spaces; (iii) liability for failure to prevent the existence of indecent images of children on a platform; and (iv) a holistic approach to sex and relationships education for children, to include digital harms. The full response is available here.

In the courts

  • Ngole, R (on the application of) v The University of Sheffield: this case was an application for judicial review of the University’s decision to expel a student for expressing discriminatory views on social media. The challenge was brought on the grounds of violation of Articles 9 and 10 ECHR, and procedural unfairness. The student in question, who was studying for an MA in Social Work, had expressed religious opposition to homosexuality in comments on a Facebook post; his dismissal was based on alleged violation of the Code of Conduct of the Health and Care Professions Council. The Court of Appeal upheld the claim, quashing the decision. In the court’s view, the University’s approach amounted to a blanket ban on religious expression in any public context, and was therefore disproportionate; they should have offered the appellant discussion and guidance on how to express himself appropriately on public social media platforms.
  • Johnson v Westminster Magistrates’ Court: The Westminster Magistrates’ Court had ruled that a crowdfunded prosecution of Boris Johnson for misconduct in public office based on his claims during the 2016 Brexit referendum campaign could go to trial. Mr Johnson sought judicial review of that decision, and his claim was upheld. In quashing the decision, their Lordships emphasised that misconduct in public office applies only where the individual is ‘acting as’ a public official, and that this was, contrary tothe District Judge’s view, not a matter for evidence at trial. The offence covers either corrupt abuse of public power for personal gain, or gross neglect in failing to fulfil core duties. It does not extend to bringing an office into disrepute or misusing a platform outside the scope of the office, as confirmed by Parliament’s choice in the ICPA 1895 and RPA 1983 not to legislate as such. Their Lordships noted obiter that, given the clear political motivations of the prosecution, the judge’s finding that the prosecution was not vexatious was flawed.  
  • The Secretary of State for the Home Department v PF (Nigeria): this case concerned a Nigerian criminal with Sickle Cell Disease, challenging a deportation order under s.3(5)(a) Immigration Act 1971, on the basis of Articles 3 and 8 ECHR. The Upper Tribunal had concluded that his death was predictable within 5 years, and therefore that the ECtHR’s test for the application of Article 3 in deportation cases from Paposhvili was satisfied: there was “a real risk…of being exposed to a serious, rapid, and irreversible decline in his or her state of health resulting in intense suffering or a significant reduction in life expectancy”. In quashing the decision, Hickinbottom LJ criticised not only the UTJs’ evidential findings, but also their reading of the law. He emphasised that (i) the more stringent test in N v SSHD for Article 3 (‘compelling humanitarian grounds…to prevent acute suffering’) is still binding until overruled by the Supreme Court; (ii) Article 8 claims must not be misunderstood as simply Article 3 claims with a lower threshold (citing GS (India) and SL (St Lucia)).

On the UKHRB

  • Professor Barnard explores Brexit options on LawPod UK
  • Bridget Dolan QC discusses a paradigm example of how not to apply for reporting restrictions.

1 comment;

  1. I read the Ngole judgement with interest and I agree with the CoA, particularly with reference to paragraphs 123-125. However, I believe there is a point that has managed to escape all parties. Felix Ngole was invited onto a Facebook discussion to share his views on homosexuality and same sex marriage in the context of US registrar Kim Davis’ refusal to abide by her oath of office to issue marriage licenses to same sex couples, or to resign. In this context it is reasonable to assume that Mr Ngole is offering his support to Ms Davis unless he says otherwise. It is not submitted that he did state otherwise. A reasonable reader would then likely conclude that he would be prepared to behave in a discriminatory manner when placed in a similar situation. I have to wonder whether the whole unfortunate episode could have been avoided had this point been made at the initial disciplinary hearing. The language and manner in which he expressed his religious views is one thing, but I think it’s incumbent upon him in that context to make clear that a public official or health and care professional must not discriminate on the basis of sexual orientation.

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