The Weekly Round-up: Brexit, Criminal Records, Universal Credit, and the Sultan of Drugs

4 February 2020 by Rosalind English

In the news

On Friday, the UK left the EU. In the midst of jubilation, despair, and relief, questions remain about the human rights implications this decision may have, as we continue to negotiate the precise terms of our exit. Clause 5 of the European Union (Withdrawal) Act 2018 already confirmed that the EU Charter of Fundamental Rights would not be included in ‘retained’ EU legislation after Brexit. Now, the Conservatives may be able to move forward with their long-term commitment to repeal the Human Rights Act 1998 and introduce a ‘British Bill of Rights’. Boris Johnson’s manifesto promise was to ‘update’ the legislation, as part of a programme of constitutional reform, looking at “the relationship between the government, parliament and the courts.”

As the coronavirus continues to provoke anxiety, China has come in for criticism for its handling of the epidemic, in the New York Times and on Human Rights Watch. After concealing new cases in Wuhan in early January, there has been censorship of online posts about the epidemic, bans on speaking to the media and journalists, and the government has been interrogating web users accused of ‘spreading rumours’ and ‘publishing and spreading untrue information online’. 

Within the UK, campaigning organisations Liberty, Unlock, and Just for Kids Law have called on the government to implement the Supreme Court’s decision a year ago in Gallagher for Judicial Review (NI) [2019] UKSC 3, on the system for criminal records disclosure.In this decision, the Supreme Court found that the requirements of the Rehabilitation of Offenders Act 1974 and the Police Act 1997 were in violation of human rights, in two key respects. Firstly, individuals were required to disclose all their offences if they had more than one, even if the offences were very minor – Liberty’s client ‘P’ had cautions for stealing a sandwich and stealing a 99p coin, while homeless and suffering from undiagnosed schizophrenia. Secondly, individuals were required to disclose youth cautions for ‘serious’ offences – Just for Kids Law’s client ‘G’ was required to disclose two sexual assault convictions he had received aged 13 for consensual sexual encounters with boys. The government has not yet responded to the call to action.

The Parliamentary Assembly of the Council of Europe has this week produced a report on the extradition of Julian Assange to the USA. The report, compiled by Labour peer Lord Foulkes, finds that the extradition of Mr Assange would “set a precedent and threaten journalists’ freedoms in all member states”. Mr Assange is currently being detained in Belmarsh prison, and an extradition hearing is due in February.

The Scottish Human Rights Commission has brought a range of serious human rights claims before the UN, in a report on the implementation of the International Covenant on Civil and Political Rights. The report expresses concern about the police’s use of facial recognition technology and ‘cyber-kiosks’; the disproportionate use of strip-searches on women and children; unacceptable conditions in Scottish prisons, including overcrowding and problems with suicide and self-harm; and the disproportionate effect of legal cuts on minority groups. The report is available here.

In the courts

R (oao TP, AR, SXC) v SSWP: this was an appeal brought by the DWP against two adverse decisions on regulations to implement Universal Credit. In the first case (‘TP (No 1)’), the court had found that the Universal Credit (Transitional Provisions) Regulations 2014 were discriminatory and therefore in violation of Article 14 ECHR, read with A1P1: this was because a person who moved to another local authority would be treated less favourably than a person who did not. In the second case (‘TP (No 2)’), the court had quashed provisions in the Universal Credit (Managed Migration) Regulations 2019 and the Universal Credit (SDP Gateway) Regulations 2019. This was on the grounds that the transitional scheme treated those who migrated ‘naturally’ from Severe Disability Premium to Universal Credit less favourably than those who made the transition under the managed migration scheme. The court rejected the Secretary of State’s challenge to both findings. This adverse decision comes after it was announced this week that the rollout of Universal Credit has now been delayed to 2024. 

R (oao AC (Algeria) v SSHD): this case was about the detention of an Algerian citizen subject to a deportation order. The case centred on the Hardial Singh principles, as re-stated by Lord Dyson in R (Lumba) v SSHD: (i) the Secretary of State must intend to deport the person detained; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances, (iii) the power must not be used where it becomes clear that deportation will not be possible within a reasonable period, and (iv) the Secretary of State should “act with reasonable diligence and expedition to effect removal.” In particular, the question related to the appropriate ‘grace period’ where the Secretary of State no longer has legitimate grounds to detain, but may need to make arrangements for release, such as tagging or notification of agencies to prevent absconding. The court held that this ‘grace period’ begins as soon as any one of the Hardial Singh principles is violated, and that the appropriate length of such a period must always be judged on the facts of the case; here, it was approximately two weeks. The case has been covered in detail by Dominic Ruck-Keene here.

Hafeez v Government of The United States of America: this was a challenge to the extradition of Muhammed Asif Hafeez, the so-called ‘Sultan of Drugs’, to the USA. Extradition was sought in relation to charges of conspiracy to import heroin, conspiracy to import methamphetamines and hashish, and aiding and abetting the manufacture and distribution of heroin; Mr Hafeez had been apprehended after a major operation involving cooperation between UK and US authorities. Counsel for Mr Hafeez argued that extradition would involve a violation of Article 3 due to (i) mandatory life imprisonment without parole and (ii) the risk posed by oppressive prison conditions. The court found that the measures available in the USA for commuting a mandatory life sentence, namely compassionate release under Title 18 and executive clemency, were sufficient to afford ‘the possibility of review’ as required under Kafkaris v Cyprus. Likewise, the court found that Mr Hafeez was not sufficiently vulnerable that incarceration in US prisons would be oppressive or unjust. There was therefore no violation of Article 3. 

On the UKHRB

• Uzay Yasar Aysey and Wayne Jordash QC analyse two cases brought in the international courts about the persecution of the Rohingya by Myanmar authorities
• Emma-Louse Fenelon discusses BBC pay discrimination with Shaheen Rahman QC on Law Pod UK
• Jonathan Metzer reports on a 6-week Pegasus scholarship spent at the US Supreme Court
• Dominic Ruck-Keene explains the decision of the Court of Appeal in AC (Algeria) v SSHD
• Adrienne Copithorne compares the standard of reasonableness in UK and Canadian judicial review proceedings