Family Court Guilty of ‘State Sanctioned Abuse’? Plus Hate Speech and Judicial Bias- the Round Up

26 July 2020 by

Conor Monighan brings us the latest updates in human rights law

In the News:


Credit: Colin

The public consultation on Scotland’s controversial Hate Crime and Public Order (Scotland) Bill has closed. In summary, the Bill:

  • Adds age as a possible basis for hate speech.
  • Enables ministers to use regulation to add to the list of possible ‘victims’ of hate crime. There are already suggestions that misogyny will be added.
  • The definition of hate crime is extended to include ‘aggravation of offences by prejudice’.
  • Creates a new crime of ‘stirring up hatred’ against any of the groups which the Bill protects.
  • Updates and amalgamates existing hate crime law.
  • Abolishes the offence of blasphemy.
  • In addition, a new offence of misogynistic harassment is being considered.

The Bill was created following Lord Bracadale’s independent review of hate crime law. Official figures show that hate crime is on the rise in Scotland and the Bill seeks to address this.

However, the Bill has caused considerable concern. Many have suggested that the Bill unduly restricts freedom of speech. The President of the Law Society of Scotland, Amanda Millar, said she had “significant reservations” and indicated that “views expressed or even an actor’s performance” could result in a criminal conviction.

Groups ranging from the Catholic Church to the National Secular Society have also spoken against the plans. The Scottish Newspaper Society expressed reservations.

Some have claimed that JK Rowling, who recently tweeted her views about transgender rights/ feminism, could be imprisoned for 7 years under the Bill. Opponents also point to the experience of Threatening Behaviour at Football and Threatening Communications Act 2012, which sought to target football hooliganism. The Act was later repealed due to concerns about freedom of speech and its ineffectiveness.

James Kelly, Labour’s justice spokesman, has pointed out that the Bill would not require ‘intention’ in order for criminality to be found. He suggested that religious views could be negatively affected by the proposals.

In response, the Scottish government points out that the Bill makes clear that criticising religious beliefs or practices does not, in itself, constitute a criminal offence. Ministers have also emphasised that the draft legislation seeks to protect minorities and oppressed groups.

In Other News….

  • Over 1000 criminal lawyers (including 8 QCs) have written to the Ministry of Justice protesting against proposals to extend the time and days on which courts can sit. Under the plans, designed to deal with the backlog of cases, some courts will open late and sit at weekends. The letter claims that the delays are not due to Covid, but the reduction in resources over the previous decade. HMCTS’s annual report appears to support this, suggesting that only one in eight performance indicators were improving before the virus hit. More from Legal Futures here.
  • The law of diplomatic immunity looks set to change. The rule gives state officials and their families immunity from prosecution whilst they work abroad. However, it is possible for nations to limit this  principle by agreement. The US and UK are going to alter their arrangements following the death of Harry Dunn. Mr Dunn was allegedly killed by a car driven by Anne Sacoolas outside RAF Croughton, yet she was able to leave the country because she was the wife of a US agent. Whilst Mr Dunn’s family were pleased with the change, it appears to be retrospective and means Ms Sacoolas is unlikely to face trial in the UK. Relatedly, the family decided yesterday to drop their legal claim against Northamptonshire Police. Newly released documents recently show that the Foreign and Commonwealth Office (FCO) did not inform the police of the relevant diplomatic immunity rules. However, the judicial review against the FCO itself will continue. More from the Guardian here.
  • London’s Victims Commissioner, Claire Waxman, gave an interview to The Independent in which she claimed family courts allow “state-sanctioned abuse”. Ms Waxman suggested the courts allow domestic abusers to attack ex-partners through litigation, give ex-partners unwarranted access to children, and that judges dismiss allegations of abuse too readily. The Commissioner said that the courts “should not allow the perpetrator to have parental responsibility or contact with the survivor when the perpetrator has a conviction, is subject to a restraining order, or where it’s been proven that they pose a serious risk of harm to that individual and the child”. She also suggested that the Domestic Abuse Bill, which is close to passing through Parliament, fails to resolve the issues. The full interview is available here.

In the Courts:

  • Alake, R (On the Application Of) v Secretary of State for the Home Department: The Claimant made a renewed application for judicial review of the Defendant’s decision not to grant her a replacement British passport. The Claimant argued it was procedurally unfair for Her Majesty’s Passport Office (“HMPO”) to refuse her application without offering her any assistance with DNA testing to help prove her case. The court agreed that the claim was arguable, albeit in “the unusual circumstances of this particular case”. The Defendant was right that HMPO has a broad discretion when considering any application for a passport. It also has no statutory power to require DNA tests to be taken, nor any obligation to facilitate them. However, it was arguable that HMPO should have asked Mr Alake, who the Claimant alleges is her father, to take a DNA test voluntarily. HMPO had admitted a previous decision was unlawful because it failed to address the possibility of a DNA test. Despite promising that the option would be considered, HMPO had not done so. The High Court held the claim was arguable and permission should be granted.
  • Surrey Heath Borough Council v Robb & Ors: The case originally arose from the Local Authority (‘LA’) seeking an order which would (i) stop the Defendant using their land as a caravan site and (ii) remove the Defendants’ from their land. The Defendants had argued that such an order should not have been granted without notice, nor without a full hearing. They had argued their rights under Articles 6, 8, and 14 were violated by the order. In this action, the Defendants argued that the judge dealing with the case should recuse himself on the grounds of apparent bias. The High Court agreed that judicial decisions must be free from bias or partiality. However, it rejected the Defendants’ submission. Whilst the judge had ruled against the Defendants in two interim hearings, this did not predetermine the result of a trial. A full hearing was different from an interim one, as there would be proper consideration of the merits and live evidence. A fair-minded and informed observer would recognise this difference and accept that the losses did not mean the judge had made a pre-judgment on the entire case. Mr Justice Freedman had only continued to be involved in the case because it would provide continuity. Application dismissed.
  • Scarsdale Grange LLP (t/a Scarsdale Grange Nursing Home) v JPIMedia Nsmy Ltd & Anor: This was a libel claim brought by a nursing home against The Star. The paper had published an article with the headline ‘Care Homes in Crisis’ and included a picture of the home (with contact details). The High Court ruled that the ordinary reasonable reader would think the article suggested that the home had (i) failed to provide its staff with adequate PPE and (ii) had admitted patients without testing them for Covid (thereby increasing the risk of the virus being brought into the home). However, these two factual allegations were not defamatory. This was because in “the context of a public health crisis, a nationwide shortage of PPE and inadequate availability of testing”, the two claims did not suggest fault or mismanagement by the Claimant. In addition, the reasonable reader would think the article criticised the Claimant’s management of the crisis. This opinion was defamatory because people would think badly of the care home for allegedly failing to protect its staff.

On the UKHRB

  • Matthew Hill examined the High Court’s decision to quash a coroner’s decision on the scope of the inquest into the death of Dawn Sturgess, who died from Novichok poisoning.
  • Sapan Maini-Thompson explained Sutherland v Her Majesty’s Advocate, in which the Supreme Court ruled unanimously that Article 8 allowed evidence obtained by “paedophile hunter” (“PH”) groups to be used in a criminal trial.
  • Rosalind English considered Linden J’s controversial decision to grant Hackney an interim injunction.

On LawPod

  • Matthew Hill discusses the implications of the Supreme Court’s decision in Gerry Adams’ claim that his detention in the 1970s had been unlawful. Catch up here.


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