Did MI5 break the law? The Round Up

10 February 2020 by Conor Monighan

In the News:

Sudesh Amman, the perpetrator of the Streatham knife attack (Credit: The Guardian)

The Government has announced that it will introduce emergency legislation to prevent terrorists from being automatically released after they have served half their sentence. Under the proposals, the parole board would have to authorise offenders’ release from prison. Individuals will need to have served two thirds of their sentence before being eligible.

The changes come after a knife attack in Streatham, London, in which a number of people were stabbed. The police and parole board were not able to prevent the automatic release of Sudesh Amman, the perpetrator of the attack.

Robert Buckland MP (the Justice Secretary) has confirmed that the proposals relate to current and previous offenders. There is also the possibility that further punishments may be proposed.

The changes have already been sharply criticised by some. Liberty has questioned whether the proposals are legal, because it means retrospectively altering people’s sentences. The BBC reports that Lord Carlile, the former independent reviewer of terrorist legislation, has suggested that the plans may be illegal.

Mr Buckland responded by arguing that the proposals relate to the ‘administration’ of the sentence, rather than altering its fundamental features (such as its length or type).

The government will try to pass the required legislation in six weeks in order to prevent the release of Mohammed Zahir Khan. Mr Khan, who is due to be released on the 28^th February, was convicted after sharing extremist material and calling for the death of Shia Muslims.

The measures are designed to complement recent announcements. These have included making inmates undergo lie detector tests before they are released and recruiting probation officers that specialise in counter-terrorism.

It seems likely that a legal challenge will be forthcoming.In Other News….

• An independent inquiry into Ian Paterson, the disgraced breast surgeon, released its findings this week. Mr Paterson is believed to have carried out unnecessary and damaging surgery on hundreds of women over a number of decades. In other cases, he used “cleavage-sparing” mastectomies, in which breast tissue is left after the operation. As a result, cancer returned to many of his patients. The inquiry found that there had been a culture of ‘avoidance and denial’, allowing Mr Paterson to continue damaging women long after he ought to have been stopped. It said that the health service was dysfunctional, with failings at every level. The report made a number of recommendations, including making it mandatory for consultants to write directly to patients explaining proposed surgical treatment. Matt Hancock, the Health Secretary, said they would be implemented within a year. Paterson has been imprisoned for 20 years in 2017. More from the BBC here.
• Liberty and Privacy International have launched a challenge against MI5, claiming that the intelligence service has been unlawfully handling individuals’ personal data. As part of a previous challenge, the government disclosed a number of documents which Liberty argues shows MI5 has broken the law repeatedly and failed to report themselves to the Investigatory Powers Commissioner’s Office (the body which oversees state surveillance). Liberty also claims that MI5 gave the Office false information so that they could obtain warrants. If the challenge is successful, it is possible MI5 will be forced to delete any unlawfully obtained data. More from Liberty here, and Privacy International here.

In the Courts:

• Northern Ireland devolution issues, A Reference by the Attorney General (Northern Ireland): The Supreme Court refused an application by the Attorney General for Northern Ireland (“the AG”). The AG claimed that the Secretary of State for Work and Pensions had breached the ECHR by commencing certain universal credit provisions. The legal issue was whether there was a ‘devolution issue’ for the Supreme Court to rule on. The court noted that the Northern Ireland Act 1998 states a ‘devolution issue’ includes the question of whether a Northern Ireland Minister/ Department has acted in a way which is incompatible with the ECHR. However, the AG’s application did not allege that Northern Ireland’s Department for Communities had acted in such a way. Rather, it was attacking the underlying act committed by the Secretary of State. In addition, the question of whether the Secretary of State had breached the ECHR is the subject of a pending appeal to the Supreme Court. Schedule 10 says a matter can only be a ‘devolution issue’ if it is not already the subject of proceedings. The Supreme Court decided, therefore, that it should dismiss the AG’s application.
• Dyson & Anor v Associated Newspapers Ltd: The High Court ruled that an article written about Sir James Dyson and his wife was defamatory. The article related to two legal claims: (i) a claim for unfair dismissal which had been brought by Ms Flanders, a former housekeeper for the couple; (ii) a claim brought by the Dyson’s against Ms Flanders, on the basis that she had stolen private property from them (such as medical records). The High Court decided that the article meant “the Claimants had behaved oppressively towards Ms Flanders by using their immense wealth to bring High Court proceedings against her in retaliation for her unfair dismissal claim”. This was prime facie.  The court also ruled that the statutory defence of ‘Honest Opinion’ requires an allegedly defamatory statement to be clearly recognisable as comment. Given that this condition was not fulfilled, the article was defamatory.
• Heal v University Of Oxford & Ors: The case concerned the court’s duty to make reasonable adjustments for disabled people. The Claimant had asked for permission to record proceedings in the Employment Tribunal (“ET”), as his condition made it difficult to take contemporaneous notes. The Employment Appeal Tribunal (“EAT”) noted that the court’s duty to make reasonable adjustments arises from general principles of law and fairness, rather than s.20 Equality Act 2010. Articles 6 and 14 ECHR does not add anything of substance to this duty. The EAT also ruled that the ET could decide the Claimant’s application should be dealt with at a hearing, rather than on the papers. Finally, the EAT dismissed the Claimant’s argument that bringing a recording device into the building prior to the court’s approval being granted would put him in contempt of court. This was highly unlikely and, in any event, the ET’s decision to hold a preliminary hearing impliedly gave the Claimant permission to bring a recording device into the court building.

On the UKHRB

• Marina Wheeler QC has written an article on Shamima Begum v Home Secretary, Special Immigration Appeals Commission, in which Ms Begum lost preliminary issues in her appeal against the Home Secretary’s decision to remove her British citizenship, but the substantive appeal continues.
• Adrienne Copthorne wrote about the meaning of ‘reasonableness’.
• On LawPod UK, Shaheen Rahman QC discusses Samira Ahmed’s decisive Employment Tribunal victory against the BBC.

Events:

• Climate Conscious Lawyering? Implementing a Climate Conscious Approach in Daily Legal Practice, at UCL: 11^th February at 6pm.
• Brexit and the Constitution (with Professor Bogdanor), at IALS: 12^th February at 6pm.

If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor at jonathan.metzer@1cor.com