What is the correct standard to be applied in police misconduct cases? Plus a new inquiry launches, and cake goes to the ECtHR – the Round Up

19 August 2019 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

Credit: The Guardian

In the News:

An application in the Ashers ‘gay cake’ case has been lodged at the European Court of Human Rights (“ECtHR”). The case involved a Christian bakery which refused to bake a cake bearing the message ‘Support Gay Marriage’. The Supreme Court found in favour of the bakery, ruling its actions were not discriminatory because the appellants were not under an obligation to express a political view which conflicted with their religious beliefs.

Lawyers representing Mr Lee, the customer whose order was refused, have outlined some of the arguments they will be making. In their submission, merely baking the cake did not mean the bakery, or the bakers, supported its message. They argue that no reasonable person would think that the bakery supported gay marriage simply because they had produced Mr Lee’s cake. Mr Lee described the Supreme Court’s decision as allowing shopkeepers to “pick and choose” which customers they serve.

The challenge comes in the wake of a motion which recently passed in the House of Commons. The cross-party motion requires the government to use secondary legislation to allow same-sex marriage in Northern Ireland (unless the Assembly is reconstituted by the 21^st October). More from the Guardian here.

In Other News….

• The situation in Hong Kong escalated further this week. Hong Kong International Airport has been crippled by protests, resulting in violent clashes between the police and protesters. Hong Kong police have admitted to deploying officers disguised as anti-government activists. The Chief Executive of Hong Kong, Carrie Lam, warned protesters not to push the country into an “abyss”. Over 100,000 campaigners marched peacefully last weekend. The protests were originally sparked by an extradition bill, which has since been suspended. However, the action has morphed into a pro-democracy movement which seeks to push back against perceived Chinese incursion into Hong Kong’s special status. (More from the BBC here).
• The Information Commissioner’s Office (ICO) has opened an investigation into the use of Facial Recognition Technology at King’s Cross. Last week the FT reported on the use of such cameras at Granary Square, sparking concerns about privacy. Sadiq Khan, the Mayor of London, has written to the developers at the site asking whether it believed its use of the technology was legal. Elizabeth Denham, Information Commissioner, said she was “deeply concerned” by the allegations. Big Brother Watch, the campaigning organisations, has said the use of facial recognition technology is becoming an “epidemic”. The ICO has released a statement here, and more information can be found from the Independent here.
• The Advertising Standards Authority (ASA) has banned two adverts for the first time under new rules designed to stop gender stereotyping. The first advert was by Philadelphia cream cheese, which showed incompetent dads failing to look after their babies whilst distracted by the product. The second was created by Volkswagen and showed a series of achievements by men, followed by an image of a lady sitting next to a pram. The ASA stated that the ads “presented gender stereotypes in a way that was likely to cause harm”. The Guardian reports here.
• The All Parliamentary Group on Safeguarding in Faith Settings issued a call for evidence into a proposed changed in the law. The Group has launched a second Inquiry into whether there should be a change in legislation relating to ‘Positions of Trust’ within faith settings. At present, it is illegal for professionals such as teachers to be involved in sexual activity with a 16 or 17-year-old in their care. However, the ban does not apply to faith and sports groups. The deadline is 5pm on 20^th More from Law & Religion UK here.

In the Courts:

• R (on the application of Officer W80) v Director-General of the Independent Office for Police Conduct (“IOPC”): The claimant, a Specialist Firearms Officer in the Metropolitan Police, challenged a decision by the IOPC to bring misconduct proceedings again him. The High Court upheld the claim. It found that the IOPC had erroneously applied a civil standard when making its decision. The July 2014 Home Office Guidance and the Code of Ethics requires a criminal standard to be applied where an officer justifies their use of force by saying they acted in self-defence. Although a civil standard might have been more appropriate for police misconduct proceedings (given the need to maintain public confidence for example), the College of Policing has a wide discretion and had good reasons for setting a criminal test. The second basis for the appeal was that the IOPC’s assessment of the facts was both unreasonable and irrational. This ground had become academic, but failed in any event due to the high threshold set by Wednesbury. Appeal upheld.
• Hopkins, R (on the application of) v Secretary of State for Justice: The Claimant, who had been sentenced to nearly 17 years in prison, challenged a refusal by HM Full Sutton to hold an oral hearing about whether his Category A status should be changed. The judicial review succeeded. The court found that the failure to hold an oral hearing was unlawful. Although many of the factors identified in the relevant Prison Service Instruction were present in HM Full Sutton’s decision, two should have carried particular weight: (1) The first was the fact the Category A Review team disagreed with the assessment of two expert psychologists. Both psychologists supported a downgrading of the Claimant’s status. A hearing would have been useful to understand their assessment. (2) The claimant was stuck in Category A and there was no way for him to demonstrate a further reduction in risk. The High Court held that “where there is evidence of an impasse which is not within the prisoner’s power to resolve … fairness clearly calls for an oral hearing” [48]. Claim upheld.
• Britliff v. Birmingham City Council: The Claimant is a social worker who had been dismissed by Birmingham City Council. He complained of unfair dismissal and disability discrimination. The Claimant sought to argue that the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) had direct effect. The EAT, agreeing with the ET, held that it did not. The famous case of Van Gend en Loos requires any directly effective instrument to be sufficiently clear and precise, unconditional and unqualified, so as to be capable of being directly invoked and enforced. In common with many treaties, which tend to be general and aspirational, the CRPD does not fulfil these criteria. This view was supported by previous authority, including Z v A Government Department (a CJEU decision) and R (Davey) v Oxfordshire County Council (Court of Appeal). In addition, s.2(1) of the European Communities Act 1972 does not give all EU Treaties direct effect, but rather requires them to be given effect by the appropriate mechanisms. Appeal dismissed.

Events:

• LGBT Rights in the Commonwealth: Constitutional Challenges to Colonial Laws: Middle Temple, 5^th September, with HRLA. More information 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

And finally, congratulations to the seven new High Court Judges who were appointed last week. A list of names can be found here.