Round Up 8.6.2020 – George Floyd protests spread worldwide, Hong Kong concerns rise and the UK eases coronavirus lockdown…

8 June 2020 by Thomas Hayes

Protesters in Los Angeles on Saturday. Credit: The Guardian.

The usual purpose of these round ups is to try and avoid repeating the headline news of the previous week whilst instead summarising the key legal developments. There are some weeks, however, in which events tend to put the judgments of the Court of Appeal into the shade.

The death of George Floyd on May 25^th not only placed concerns about policing attitudes and deaths in custody onto the front pages, but also shone a light on to wider systemic racism. Protests in response were ongoing as of Sunday, both in the USA and around the world. The use of force by police in the aftermath of demonstrations has been widely reported upon, particularly in the United States, where the extent of force deployed against the British media led to a formal raising of the matter by the British embassy in Washington.

Whilst most media in the UK tended to be united in their abhorrence at police brutility, the response in the United States has been notably more polarised. In the week of the 31^st anniversary of the Tiananmen Square massacre, Senator Tom Cotton of Arkansas (apparently without irony) suggested the deployment of an American airborne division, in an American city, to guard against American protestors. The 1992 Los Angeles Riots demonstrate the inherent risks in such an approach. In one episode, whilst conducting a combined patrol, a misunderstanding between troops and police as to the meaning of the words “cover me” lead to troops firing 200 rounds at a residential address whilst police attempted to secure the occupant’s safety.

The prospect of domestic troop deployments raised a number of scenarios, almost all of which are concerning. Cotton seemed to fail to consider the ability of the military to undertake policing, of which they have no experience, as well as their willingness to do so. The scenario raised all sorts of constitutional concerns more commonly observed in failing states, such as what might happen if the military, deployed domestically, then refused to then obey an order from their Commander-in-Chief.

On the other side of the Pacific meanwhile, thousands of protestors in Hong Kong ignored an official ban, ostensibly due to coronavirus, to attend the city’s annual Tiananmen commemorations. The event occurred amid heightened tension caused by Beijing’s determination to introduce new security laws to the city. In response, the United Kingdom suggested that were such laws to be introduced, it would increase the rights currently afforded to those holding the status of British National (Overseas). The UK has no fewer than six different categories of national, each conferring varying rights on the individual, largely a legacy of its colonial past.

In the purely domestic sphere, the week saw widespread changes to coronavirus legislation (The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No3) Regulations 2020), including a provision rendering sleepovers illegal. By purported reason of urgency, such changes were made without consulting Parliament. This was probably for the best, given that the House of Commons removed the ability of MPs to vote remotely, drawing criticism from individuals as disparate as arch Brexiter Steve Baker and leader of the opposition Sir Keir Starmer (click links to view each individual’s statement on the matter). Further Coronavirus legislation appeared in the form of the The Health Protection (Coronavirus, International Travel) (England) Regulations 2020, which introduced mandatory 14 day quarantine for arrivals from abroad. British Airways responded to Priti Patel’s announcement of the measures by taking steps to commence judicial review on the grounds of irrationality.

In other legal news:

• Sutherland (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) UKSC 2020/0022 (Expedited). The Supreme Court heard argument on behalf of a convicted child sex offender that admitting evidence into court obtained by vigilante “paedophile hunters” was incompatible with the requirement of the court to act in accordance with Article 8 ECHR (Private and Family Life). HM Inspectorate of Constabulary in Scotland estimates that almost half of online grooming cases brought before the court rely in part on the activities of such groups.

• The Court of Appeal rejected a claim brought against the decision of an Essex council to introduce voter identification pilot schemes – Coughlan, R (on the application of) v The Minister for the Cabinet Office & Anor [2020] EWCA Civ 723. The appellant had claimed that such schemes act in particular to disenfranchise the poor and vulnerable. The court largely declined to consider the particular merits of such schemes, but upheld the decision of the High Court that in introducing them the Respondent had not acted ultra vires.

• Mahmood, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Ors [2020] EWCA Civ 717 – Three individuals lost their appeal against deportation. All were subject to the provisions of the Nationality, Immigration and Asylum Act 2002 which allows for the deportation of foreign criminals, and requires their Article 8 rights be balanced against the public interest.

• The High Court set aside a decision to strike out a claim brought on behalf of two young children in respect of psychiatric injuries they suffered after their father died of a heart attack – Paul & Anor v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB). The judgment includes a quite detailed review of the law on secondary victims suffering from “nervous shock” and the circumstances in which they can recover.

On the UK Human Rights Blog:

• David Hart QC reports on last week’s judgement in Serafin v. Malkiewicz [2020] UKSC 23, in which the Supreme Court ordered a retrial in a defamation case on the grounds that the judge’s conduct of the trial had been unfair to the Claimant (here).

• Rosalind English examines the decision of a South African court to hold some of the country’s coronavirus lockdown regulations unlawful (here).
• Michael Spencer reviews the decision of the High Court in R (W, a child) v Secretary of State for the Home Department, Project 17 intervening [2020] EWHC 1299 to hold the Home Office’s policy of no recourse to public funds for foreign nationals unlawful (here). 

• The falling number of rape convictions is discussed by Emma-Louise Fenelon and Jennifer MacLeod on Lawpod UK (here).

• In the latest episode of Law Pod UK Rosalind English discusses the question of intensive farming and other issues that the Agriculture Bill may or may not deal with when it passes into law.

Lastly three new books have been released by Hart Publishing:

• Common Law Constitutional Rights by Mark Elliott and Kirsty Hughes examines the developing area of common law constitutionalism.

• Human Rights Imperialists The Extraterritorial Application of the European Convention on Human Rights by Conall Mallory. The book looks at the extent to which a state’s obligations under the European Convention on Human Rights apply beyond its territorial borders.

• Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice. A Role for Proportionality? Ermioni Xanthopoulou explores the relationship of mutual trust and fundamental rights in the Area of Freedom, Security and Justice of the European Union.

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