Round Up 3.8.20 – Sentencing in the criminal courts becomes the focus of public attention…

3 August 2020 by Thomas Hayes

British SAS soldiers in Helmand province, Afghanistan. Credit: The Guardian

The final week of the legal term was set against the backdrop of new restrictions on the ability of different households to meet across a large part of northern England. The main restriction takes the form of a prohibition on individuals entering households other than their own to visit friends and family. As has become traditional over the last few months, the guidance was announced with a promise to bring forth new laws in the future, to confer actual powers of enforcement.

In addition, many of the week’s dominant news stories carried a prominent legal flavour:

• The conviction and sentencing for manslaughter of Henry Long, Albert Bowers and Jessie Cole in relation to the death of PC Andrew Harper focused attention on homicide law and sentencing procedure. The case drew significant public interest amid concerns about the potential leniency of sentence and their acquittal for murder. Those with an interest in the case could do much worse than to read the sentencing remarks of Mr Justice Edis (here), which provide a clear and helpful insight into the considerations of sentencing in the case;

• It was widely reported (including by The Guardian – here) that a High Court order has been served on the Defence Secretary, requiring that he explain the failure of the Ministry of Defence to disclose large volumes of material suggesting the department held concerns about a “rogue” SAS unit conducting the extrajudicial killings of Afghan civilians in 2011. A response is required by the autumn;

• The Government announced the formation of an independent panel to examine the role of judicial review. The panel is to be chaired by Lord Faulks QC, former Minister of State for Civil Justice and Legal Policy under David Cameron. Interestingly, Lord Faulks wrote on the very subject back in February (here), where he commented that the decision of the Supreme Court to quash the Prime Minister’s prorogation of Parliament was an “historic mistake”.

The week also saw a number of interesting judgments…

• Hoareaut & Anor, R (On the Application Of) v The Secretary of State for Foreign And Commonwealth Affairs [2020] EWCA Civ 1010 (30 July 2020) – The Court of Appeal dismissed an appeal brought by two Chagossians against the decision of the Divisional Court to refuse judicial review of the Government’s policy in respect of the islands. The initial proceedings were brought against the Government’s decision not to support resettlement of Chagossians to the islands, but to instead provide a financial support package.

• In EA & Anor, R (On the Application Of) v The Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin) (29 July 2020) the High Court rejected an application by survivors of the Manchester Arena bombing to be granted core participant status. For more on the decision, see Matthew Hill’s separate UKHRB post here.

• Harrison & Ors, R (On the Application Of) v Secretary of State for Justice [2020] EWHC 2096 (Admin) (31 July 2020). A judicial review brought by six couples who identify as humanists was dismissed by the High Court. The Claimants had sought a declaration of incompatibility under section 4 of the Human Rights Act on the grounds that the legal underpinnings of religious wedding ceremonies do not extend to weddings carried out in accordance with their beliefs. Whilst the court held that the law affords different individuals different rights on the basis of their religion, the Government was held to have demonstrated a legitimate aim in seeking to address such differences by way of a wholesale reform of the law of marriage, which is currently subject to ongoing review.

• The High Court heard a judicial review of emergency legislation brought in response to terrorist stabbings at Fishmonger’s Hall and in Streatham – Khan, R (On the Application Of) v Secretary of State for the Justice Department [2020] EWHC 2084 (Admin) (30 July 2020). Following the two incidents, the automatic early release provisions were suspended in respect of terrorist offenders, with early release made subject to the approval of the Parole Board. The court dismissed the Claimant’s case that the legislation was incompatible with articles 5, 7 and 14 of the European Convention on Human Rights.

• EK, R (On the Application Of) v Secretary of State for the Home Department [2020] EWHC 2111 (Admin) (31 July 2020) – A Sierra Leonean gentleman succeeded in obtaining permission for judicial review in relation to his ongoing detention, as well as a court order requiring provision of suitable accommodation under s4(2) Immigration and Asylum Act 1999. The gentleman concerned has been in immigration detention since his release from prison on 11 April 2019, his case having progressed slowly due to his substantial mental health issues, prior offending and the Covid-19 pandemic.

On the UK Human Rights Blog…

• Dominic Ruck Keene discusses the recent case of Humnyntskyi & Ors, R (On the Application Of) v Secretary of State for the Home Department [2020] EWHC 1912 (Admin) (21 July 2020) in which the Home Office’s policy in respect of bail immigration was found to be systemically unfair.

• Anna Williams looks at the decision in Barclays Bank plc v Various Claimants [2020] UKSC 13 (01 April 2020) , in which the Supreme Court allowed an appeal on the ground that no vicarious liability can lie for the acts of an independent contractor.

On Law-pod UK…

• Emma-Louise Fenelon speaks to Gideon Barth about secondary victim claims, and the recent case of Paul & Anor v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) (04 June 2020)