International Human Rights, Public Interest Immunity, and Brook House – The Round Up
24 August 2020
Conor Monighan brings us the latest updates in human rights law
In the News:
Internationally there were a number of developments which have significant consequences for human rights. In Russia a prominent critic of Vladimir Putin has allegedly been poisoned. Alexei Navalny, who is known for exposing corruption within the country, suddenly fell ill last week after drinking tea.
Supporters claim the Russian state has tried to silence Mr Navalny’s criticism of President Putin, and then attempted to cover up its actions by stopping Mr Navalny from being treated abroad. Despite initial resistance from doctors, who said that Mr Navalny was too ill to be moved, the leader has now been flown out of Russia. Critics say the developments are part of a wider crackdown on freedom of speech within the country.
A similar story has emerged from Zimbabwe, where magistrates ordered a renowned human rights lawyer to refrain from representing her client (a journalist who had reported on ministerial corruption). Magistrate Nduna, the leading magistrate in the case, also called upon the Prosecutor-General to consider investigating the lawyer for contempt of court. The Bar Council of England and Wales has issued a statement encouraging Magistrate Nduna to withdraw her ruling. It also noted that the “ruling against Beatrice Mtetwa seems to form part of a wider pattern of harassment and intimidation attempts by the Zimbabwean authorities against Beatrice Mtetwa for simply doing her job”.
Finally, the Bar Human Rights Committee of England and Wales released a statement condemning the continued crackdown on peaceful protest in Belarus. Presidential elections took place on 9th August 2020, with a number of countries refusing to accept that the result was legitimate. The result showed President Lukashenko, nicknamed ‘Europe’s Last Dictator’, apparently winning by a landslide. The response by the police to protests has been brutal. There have been reports of excessive violence, beatings, and possible torture. At least 200 protesters have been wounded and at least two have died.
In Other News….
- The ban on evicting tenants has been extended by four weeks. The government had previously announced a stay on possession proceedings, but it was due to end last Sunday. There had been warnings that almost half a million people were at risk of being evicted and that councils’ housing departments would be overwhelmed. The Housing Secretary has said that, when the ban is lifted, the most serious cases – involving possible crime, anti-social behaviour, unpaid rent for over a year – would be heard first by courts. The District Councils Network, a cross-party group, also called upon the government to increase housing benefit so that it covers the lowest third of market rent. (More from the Local Government Lawyer here).
- The brother of the Manchester Arena bomber has been jailed. Hashem Abedi, 23, was found guilty in March for killing 22 people, a count of attempted murder (in relation to those injured in the blast) and for conspiring to cause explosions. Abedi refused to leave his cell whilst relatives of the deceased gave evidence about their loss. He was sentenced by Mr Justice Jeremy Baker to a life sentence with a minimum of 55 years in prison. Mr Justice Baker remarked that “Although Salman Abedi was directly responsible, it was clear the defendant took an integral part in the planning”. (More from the Guardian here).
In the Courts:
- Jordan, R (On the Application Of) v Merseyside Police & Anor: The Claimant, Mr Paul Jordan, sought to quash a search warrant granted under the Misuse of Drugs Act 1971 (“the 1971 Act”). He argued that the warrant was granted on the basis of a deliberately false and exaggerated account of the execution of a previous warrant, about which he said there were material non-disclosures by the police. In response, the police asserted Public Interest Immunity (‘PII’) over 14 summaries of intelligence reports, which they relied upon to establish the reasonable suspicion necessary to justify the grant of the warrant. The High Court upheld the PII claim. It took the approach outlined in ex p Wiley. It ruled (i) the evidence in relation to which PII was asserted was relevant. This was because the material which was before the magistrate could arguably support the Claimant’s challenge. The court also ruled that (ii) disclosure of the information would damage the public interest in ways which have previously been held to justify the assertion of PII. With one exception, this information could not be paraphrased to avoid this harm. Finally, the court ruled (iii) that, after balancing the public interest in the administration of justice against the potential harm to the public, an order for disclosure should not be made. This was because serious damage could be caused by releasing the material.
- Soltany & Ors, R (On the Application Of) v Secretary of State for the Home Department: The Claimants argued that the conditions at Brook House Immigration Removal House were unlawful. The High Court dismissed the claims. It held that the common law, Article 5, and Article 8 ECHR were not breached by the night regime. It was not necessary to lay down statutory provisions or Home Office rules specifying its exact nature. This was a matter “of operational arrangements which must respond to particular circumstances, and which does not lend itself to being prescribed in full detail”. There was statutory authorisation for the detention. The conditions were not ‘unduly harsh’ and, whilst sub-optimal, did not interfere with the Claimants’ rights. The court also held that the Defendant had not fettered her discretion by delegating to G4S the decision of how long the night state should be. There was no evidence that the Defendant considered herself fettered by G4S’s arrangements. In fact, written documents suggested the Defendant was content with the situation and could require changes if desired. Finally, the court judged that although Muslims sometimes had to perform prayers in their rooms near to a toilet, this did not amount to religious discrimination. The situation was less than ideal, but was not incompatible with their religious beliefs and was justified.
- AB, R (On the Application Of) v Northumbria Healthcare NHS Foundation Trust & Anor (Rev 1): In this case, the mother of a 17 year old with learning difficulties applied (by way of judicial review) to correct inaccuracies in her child’s medical records. She claimed that keeping the misinformation amounted to a breach of the General Data Protection Regulation and the Data Protection Act 2018 (‘DPA’). It was agreed that the information was inaccurate, but the mother had concerns about whether the information had been properly corrected and deleted. The Defendants chose not to argue that the Claimant lacked standing, though the judge expressed serious reservations on this point. The court ruled that the claim was in time, because there had not been sufficiently clear confirmation that the records were going to be corrected. However, the Claimant had failed to pursue two adequate remedies. The first was to make an application under ss 167-168 DPA, which allows courts to enforce compliance of the GDPR. The second was a claim that the Equality Act 2010 had been breached. Permission for judicial review was, therefore, denied.
On the UKHRB
- Rosalind English wrote about a successful challenge to the lockdown in New Zealand.
- Joanna Curtis explained Makuchyan and Minasyan -v- Azerbaijan and Hungary, which concerned Azerbaijan’s decision to pardon an army officer who decapitated an Armenian while he slept.
- Gideon Barth wrote a fascinating article about R (EA and another) v Chairman of the Manchester Arena Inquiry. There, the High Court refused a request for permission to judicially review the decision made by the Chairman of the Manchester Arena Inquiry Chairman to bar a group of survivors from being core participants.
- ‘Does the state really care when it kills you?’ with Gresham College/ Professor Leslie Thomas QC, at 6pm on 1st October 2020. More here.
- ‘The political lawyer’ with Gresham College/ Professor Thomas Grant QC, at 6pm on 19th October. More here.
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