The Weekly Round-up: Operation Cygnus, lawyers in the firing line, and a new undercover policing bill

13 October 2020 by

Photo: Richard Townshend

In the news

The ‘second wave’ of UK coronavirus cases is continuing to surge. The government’s scientific experts have warned that we are at a ‘critical moment’ for handling the pandemic, after daily case numbers doubled this week. In anticipation of a difficult winter, the provisions of the Coronavirus Act 2020 have been renewed for another 6 months; local lockdowns continue in Scotland and in large parts of Wales and the North of England; and Chancellor of the Exchequer Rishi Sunak has set out a rescue package for businesses, under which the government will cover 2/3 of salary payments for businesses forced to close.

Meanwhile, we may finally be about to see the contents of Operation Cygnus, the influenza pandemic readiness exercise undertaken by the government in 2016. NHS doctor Moosa Qureshi made a freedom of information request to see the report more than 6 months ago. Following the government’s delays in responding, the Information Commissioner has now taken a dramatic step in ordering the Department of Health and Social Care to provide the document, or explain its reasons for refusing to do so, by 23rd October.

The government has made some disparaging comments about certain sectors of the legal profession on display this week. At the Conservative Party conference, Home Secretary Priti Patel condemned ‘lefty lawyers’ for ‘defending the indefensible’ in immigration appeals, while Prime Minister Boris Johnson pledged to “[stop] the whole criminal justice system from being hamstrung by…lefty human rights lawyers”.

Senior figures in the legal profession have condemned the government’s remarks. Simon Davies, President of the Law Society, expressed concern that “firms that deal in emotive issues such as immigration are being targeted”, and urged the government to be “mindful of the rhetoric they employ”. Similarly, Amanda Pinto QC, chair of the Bar Council, condemned Mr Johnson for “remarks…which wrongly seek to politicise and attack lawyers for simply doing their job in the public interest”, and asked that he “reassure thousands of key workers – including lawyers employed by your own government – that they are not being attacked by the prime minister for their important contribution to the justice system”.

The government’s somewhat heavy-handed approach to criminal justice was also apparent this week, as the Covert Human Intelligence Sources (Criminal Conduct) Bill came before Parliament. The bill amends the Regulation of Investigatory Powers Act 2000 to provide a mechanism for authorising criminal conduct by undercover agents working for the police and various government agencies, where necessary and proportionate to do so.

The proposed law has faced criticism on the basis that it does not exclude the most serious crimes, namely sexual assault, torture, and murder; it has been nicknamed the ‘licence to kill’ bill. Critics have also highlighted the political implications: undercover policing has disproportionately targeted left-wing groups, such as anti-fascist groups, environmental activists, and trade unions. The bill is due for second reading on 15th October.

In other news

  • The Vietnamese authorities have arrested prominent dissident Pham Doan Trang on charges of “making, storing, disseminating or propagandising information, materials and products that aim to oppose the State of the Socialist Republic of Vietnam”. She faces up to 20 years in prison; human rights organisations have expressed concern that she may be tortured in custody.
  • Foreign Secretary Dominic Raab has threatened sanctions against China, including a boycott of Winter Olympics Beijing 2022, in light of continuing human rights abuses against the Uighurs. On the other side of the benches, shadow Foreign Secretary Lisa Nandy has urged Mr Raab to oppose the election of China to the UN council until there is a full UN inquiry into crimes against humanity in Xinjiang.
  • After 5 years of legal action, Greece’s fascist ‘Golden Dawn’ party has been found to be a criminal organisation, and various of its members have been convicted of serious crimes, including the murder of anti-fascist singer Pavlos Fyssas, the attempted murder of Egyptian fisherman Abouzid Embarak, and several counts of grievous bodily harm against trade unionists.  

In the courts

R (oao Officer W80) v Director General of the Independent Office for Police Conduct & Ors

This case related to the use of force by armed police officers. Jermaine Baker was shot and killed in December 2015 by an armed police officer (officer W80), after the officer opened the door to Mr Baker’s car and told him to put his hands on the dashboard, and Mr Baker reached for his chest. Audio evidence showed that other officers had told Mr Baker to put his hands up, and further evidence showed that the officer had fired the shot almost as soon as he opened the car door.

The Independent Office for Police Conduct directed the London police commissioner to bring disciplinary proceedings for gross misconduct against officer W80, on the basis that he had not complied with paragraph 4 of the College of Policing Code of Ethics, which sets out the rules for the use of force by armed officers. In the IOPC’s view, a reasonable disciplinary panel was likely to find that officer W80’s honest belief that his life was in danger was unreasonable. This direction had been overruled by the Divisional Court, on the basis that the relevant standard was the criminal standard, not the civil standard: i.e. honest, not necessarily reasonable, belief that force is necessary.

The Court of Appeal overruled this decision. The fundamental point of paragraph 4 was simply that an officer must only use force where it is “necessary, proportionate and reasonable in all the circumstances”. The fact that paragraph 4.4 stated an officer would be expected to justify their action based on their ‘honestly held belief’ at the time did not import the technicality of the criminal standard; it was simply indicating what was expected of the officer at the disciplinary hearing. It would then be up to a disciplinary panel to decide whether an honest mistake was ‘reasonable in all the circumstances’. Accordingly, the Divisional Court’s ruling was quashed and the IOPC direction reinstated.

AA (Nigeria) v Secretary of State

This case concerned the grounds for non-deportation of ‘foreign criminals’ under s.117C(5)-(6) of the National Immigration and Asylum Act 2000. The appellant was a 32-year-old Nigerian citizen convicted of supplying Class A drugs. He had faced a deportation order, which was overruled by the First-tier Tribunal on the basis that deportation would disproportionately interfere with the rights of his partner and two children under Article 8 ECHR. It had been observed that he had a young teenage daughter, who had been deeply affected by her father’s absence in prison; he was primary caregiver for a young son, as his partner worked full-time as a nurse; his son was suspected to have special educational needs, and probably Autism Spectrum Disorder; deportation risked serious impacts on not only his children but also the emotional stability of his partner; and he had undergone rehabilitation and was very unlikely to reoffend. The FTT’s ruling had been overturned by the Upper Tribunal on the basis of error of law.

The court held that the UT had been wrong to find that there was an error of law in deciding deportation would be unduly harsh. The decision had been based on perversity alone, which was not arguable. Even if the UT would have decided the matter differently, there was no error of law; the FTT decision was reinstated.

On the UKHRB

  • Rosalind English discusses protected species with environmental law experts on LawPod UK
  • Sapan Maini-Thompson explains the Court of Appeal’s decision in Delve and Anor v SSWP, a gender discrimination challenge brought against the rise in state pension age
  • Rafe Jennings explores the implications of the CJEU’s decision in Case C-623/17, a reference from proceedings brought by Privacy International against UK security agencies, for the UK’s post-Brexit data ‘adequacy’ agreement

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