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:

Scottish_Parliament_Debating_Chamber_2

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 The Act was later repealed due to concerns about freedom of speech and its ineffectiveness.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.

Events:

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

Books:

A number of new books have been released by Hart:

  • A Failure of Proportion, Non-Consensual Adoption in England and Wales, by Samantha M Davey
  • Why Religious Freedom Matters for Democracy, Comparative Reflections from Britain and France for a Democratic “Vivre Ensemble”, by Myriam Hunter-Henin
  • The Legacies of Institutionalisation, Disability, Law and Policy in the ‘Deinstitutionalised’ Community, edited by Claire Spivakovsky, Linda Steele and Penelope Weller
  • Police Street Powers and Criminal Justice, Regulation and Discretion in a Time of Change, by Geoff Pearson and Mike Rowe
  • The Constitution of Social Democracy, Essays in Honour of Keith Ewing, edited by Alan Bogg, Jacob Rowbottom and Alison L Young

Use the code HE6 at the checkout to get 20% off your order.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: