The Weekly Roundup: Shamima Begum, Paedophile-Hunters, and Criminal Justice

20 July 2020 by Rosalind English

In the news

The future of the UK response to COVID-19 remains uncertain. Prime Minister Boris Johnson has hinted that things will be ‘significantly normal’ by Christmas, and has emphasised his reluctance to impose a second national lockdown, comparing such a threat to a ‘nuclear deterrent’. Yet the government’s chief scientific adviser Sir Patrick Vallance says there is a risk we will need another national lockdown in the winter months. Mr Johnson has said the advice on working from home will change on 1^st August to ‘go back to work if you can’; Sir Patrick Vallance says there is ‘no reason’ to change that advice. Confusion continues to reign.  

Access to justice has been a major casualty of the pandemic, with jury trials suspended and a steady backlog of cases building up in the courts. To address that backlog, the government is now opening 10 temporary ‘Nightingale Courts’, which will hear civil, family, tribunal, and non-custodial criminal cases. Chair of the Criminal Bar Association Caroline Goodwin QC says that these courts are ‘just a start’, and that further buildings and a renewed focus on criminal trails will be needed to clear the backlog. Justice Minister Robert Buckland has already warned that the backlog may not be cleared until 2021.

The Court of Appeal has granted Shamima Begum leave to enter the UK in order to pursue her appeal against the Home Office’s decision to remove her British citizenship, overruling part of the decision made by the Special Immigration Appeals Commission. The court’s ruling is discussed in more detail below, and in an article by Marina Wheeler QC.

UK relations with China continue to be frosty. Coming hard on the heels of UK criticism of the controversial new ‘national security law’ in Hong Kong, Foreign Secretary Dominic Raab has accused China of ‘gross and egregious’ human rights abuses against the Uighur population. The UK has threatened sanctions; a petition for such sanctions has reached 100,000 signatures, and will therefore be debated in Parliament. Chinese ambassador to the UK Lui Xiaoming has rejected allegations of ethnic cleansing and concentration camps for the Uighurs, and has indicated that China will consider retaliation if the UK chooses to impose sanctions.

Across the Atlantic, US Secretary of State Mike Pompeo this week launched a draft report produced by his Commission on Unalienable Rights. The authors of the report state that they reject the application of human rights standards to issues such as ‘abortion, affirmative action, and capital punishment’; in a speech for the launch, Mr Pompeo has said that he considers private property and religious freedom to be the ‘foremost’ of human rights. The remarks have provoked criticism. Tarah Demant, director of the gender, sexuality and identity programme at Amnesty International USA, expressed concern that the US state department was engaging in a ‘dangerous political stunt’ which could lead to a global ‘race to the bottom’ in respect of human rights standards.

In the courts

There were three especially noteworthy cases in the courts this week.

The first of these concerned Shamima Begum, the British-born woman who left the UK aged 15 to become an ‘ISIS Bride’, and was deprived of her British citizenship by the Home Secretary in February 2019. The case has been reported as Begum v Special Immigration Appeals Commission & Ors.

The case is covered in more detail in Marina Wheeler QC’s article,

The second case was a Supreme Court decision on the use by law enforcement agencies of evidence gathered by so-called ‘paedophile-hunters’ – Sutherland v Her Majesty’s Advocate (Scotland)

In this case, the appellant had sent pictures of his erect penis to a paedophile-hunter from ‘Groom Resisters Scotland’ posing as a 13-year-old boy on Grindr. He arranged a meeting, and was then apprehended by paedophile-hunters, arrested by the police, charged with 3 sexual offences, and sentenced to 3 years in prison. His appeal to the High Court of Justiciary (‘HCJ’) under the Regulation of Investigatory Powers (Scotland) Act and Article 8 ECHR rejected. The HCJ referred two questions to the Supreme Court:

• Whether Article 8 might be interfered with by the use of communications between the appellant and paedophile-hunters in a public prosecution of the appellant for a relevant offence; and
• To what extent could the obligation on the state to provide adequate Article 8 protection be incompatible with the use by a public prosecutor of material supplied by paedophile-hunter groups in investigating and prosecuting crimes.

The HCJ had found that there was no interference with correspondence, and no reasonable expectation of privacy. Even if there had been, the interference would have been justified; and even if had not been, the evidence would in all probability have been admissible to prove the appellant’s guilt.

The Supreme Court (Lord Sales) upheld these findings.

On the question of interference with Article 8, the court first noted that the communications, being indecent and targeted at a child, were not such as to be worthy of respect for the purposes of Article 8. The court cited KU v Finland as showing that it is part of Article 8 that children and vulnerable individuals are entitled of effective protection. In that case, an unidentified person placed an advertisement on an Internet dating site in the name of the applicant, who was 12 years old at the time, without his knowledge. He got a response from a paedophile. The father requested the police to identify the person who had placed the advertisement in order to bring charges against that person. The service provider refused to divulge the identity of the holder and the Finnish courts upheld this refusal. The ECtHR held that this constituted a violation of Article 8 through the lack of effective criminal sanctions.

As to whether there could have been a reasonable expectation of privacy, the court was careful to distinguish Benedik v Slovenia, a case which noted a reasonable expectation of privacy in relation to use of the internet, in the context of a police investigation into downloading and copying of child pornography. The court emphasised that that case was about state surveillance, and internet browsing, whereas the instant case involved a decoy set up by a private individual, and communications sent directly between previously unacquainted people. Once the appellant had sent the messages, there could be no reasonable expectation that the paedophile-hunters would not send them to the police, or that the police would not then use them to investigate his crimes.

The question of the state’s obligations was irrelevant as the court had found that Article 8 was not engaged. However, for clarity, the court highlighted that a criminal prosecution will only rarely be incompatible with Article 8, as it will usually be justified as being in accordance with the law and necessary in democratic society (Article 8(2)); evidence may be relied upon in criminal proceedings provided it does not violate Article 6 ECHR.

The third case was a judicial review relating to the coronavirus suspension of jury trials, and its implications for defendants awaiting trial: McKenzie, R (on the application of) v The Lord Chancellor & Ors

The applicant had been awaiting trial at Leeds Crown Court on charges of attempted murder, wounding with intent, and damaging property. The DPP decided on the same day as the LCJ suspended jury trials (23 March 2020) to propose to extend the applicant’s custody time limit (‘CTL’); this was extended by a judge by 1 month, in line with a Coronavirus Protocol for the Effective Handling of Custody Time Limit Cases in the Magistrates and the Crown Court (the ‘Protocol’) published on 27 March.

The applicant challenged this decision on the basis that (i) the LCJ’s decision to suspend jury trials was ultra vires; (ii) the suspension of jury trials could not be ‘good and sufficient cause’ to extend his CTL under s.22(3) Prosecution of Offences Act 1985; and (iii) the Protocol was unlawful because it subverted the statutory scheme and fettered the discretion of judges.

The court rejected the claim on all counts. The LCJ’s decision to suspend jury trials had been a lawful decision which did not require Parliamentary approval; the suspension of jury trials was evidently a good and sufficient cause, as indicated by the Protocol; and the judge’s judgement made it obvious that his discretion had not been fettered by the Protocol.

On the UKHRB

David Hart QC explains a ruling on the tortious duties of care owed by a UK ship agent to a Bangladeshi worker, Begum v Maran

Marina Wheeler QC examines the Court of Appeal’s decision in the case of Shamima Begum

In the latest episode of Law Pod UK, Professor Catherine Barnard reviews the most recent developments in the Brexit negotiations

Alice Kuzmenko unpacks the High Court’s decision on Article 5 ECHR in the context of detention of a minor for his own protection in Archer v Commissioner of Police for the Metropolis

Books

• Positive Free Speech: Rationales, Methods and Implications, edited by Andrew T Kenyon, Professor of Law at Melbourne Law School, and Andrew Scott, Associate Professor in Law at the London School of Economics and Political Science
• Information Rights: a Practitioner’s Guide to Data Protection, Freedom of Information, and other Information Rights, by Philip Coppel QC, leading information law barrister and joint head of Cornerstone Chambers
• Law and Religion in the Liberal State, edited by Md Jahid Hossain Bhuiyan, Associate Professor in the Department of Law and Justice at Southeast University, Bangladesh, and Darryn Jensen, Senior Lecturer in the Law School at the Australian National University, Canberra