The Round-Up: Some hope remains for Harry Dunn’s family

8 December 2020 by William Craig Cohen

In the news:

On Thursday, Harry Dunn’s family were granted permission to appeal against the High Court ruling handed down on 24 November, which held in no uncertain terms that Mrs Sacoolas did enjoy diplomatic immunity at the time she killed 19 year-old Harry Dunn while driving on the wrong side of the road in August of last year. The US state department has refused to waive her immunity under Article 32 of the Vienna Convention on Diplomatic Relations, stating that to allow the waiver, and thereby the extradition request that would inevitably follow would set an “extraordinarily troubling precedent”. The arrests of diplomats Michael Kovrig in China and Rob Macaire in Iran over the last year highlight the continued importance of the inviolability of diplomatic agents serving abroad. However, where there has been an unlawful killing by a family member of an agent, natural inclinations of justice are upset by the failure of a longstanding diplomatic ally to simply do the right thing.

On the same day that permission was granted, Edward Snowden called on President Donald Trump to pardon Julian Assange, whose decision on extradition from the UK will be delivered in January. Assange was indicted in the US under 18 counts, including Conspiracy to Commit Computer Intrusions, and Disclosure of National Defense Information. Mr Assange leaked US military data via his website Wikileaks, including videos of American soldiers firing upon civilians and reporters in Iraq and then laughing at the casualties. Sajid Javid signed the extradition order on 13 June of this year.

It seems just as unlikely that President Trump will deliver a pardon for Mr Assange as he will permit the extradition of Mrs Sacoolas. Before Harry Dunn’s parents went to meet Donald Trump at the White House last year, he stated “when you get used to driving on our system and then you’re all of a sudden on the other system where you’re driving – it happens.” During their visit, he tried to pay them with a cheque. There is some renewed hope for Harry Dunn’s family that President-elect Joe Biden might prove willing to reconsider the US approach to the killing of the teenager in August of last year, having seen his own wife and baby daughter die in a car crash in 1972. As ever, the intersection of diplomatic relations and extradition provides an uneven playing field.

In other news:

• A man was killed after being beaten, strangled and set on fire in Highgate Mental Health Hospital by an inpatient who was supposed to be kept under constant watch. His indefinite detention was ordered this week. This writer has previously visited the hospital in question and, sadly, the description of seriously ill and heavily medicated patients wandering unsupervised around the ward does not come as a particular surprise. The toll on mental wellbeing during the coronavirus pandemic has already caused the highest suicide rate in men for the last 20 years, and the lockdown has brought poor mental health into sharp focus for many. The promise of a £500m increase in mental health funding from Chancellor Rishi Sunak last month provides some hope, though systemic changes to treatments and provisions for those suffering from a wide variety of vastly different psychological conditions are required in addition to significant extra funding. The delay to the bringing into force of the Mental Health Units (Use of Force) Act is not encouraging.

• The Care Quality Commission (CQC) saw a jump in complaints between March and September following decisions made not to attempt resuscitation of patients. The CQC said that it received evidence of blanket policies on resuscitation in hospitals during the first wave of the coronavirus pandemic. Following Tracey v Cambridgeshire NHS Foundation Hospital Trust [2014] EWCA Civ 822 there need to be convincing reasons not to involve patients on ‘do not attempt resuscitation’ (DNAR) decisions, or it will be considered a breach of Article 8 ECHR.

• On Tuesday, Lord Burnett of Maldon, the Lord Chief Justice of England and Wales, called for an end to the ‘unprecedented’ levels of political interference in the courts. This follows the letter sent by Tory peer David Freud and five MPs to senior judges, written on House of Commons notepaper, attempting to suppress the publication of character references that were written in support of Charlie Elphicke. Mr Elphicke was convicted of three counts of sexual assault after the court heard how Elphicke groped one of his accusers and chased her around his house, singing “I’m a naughty Tory, I’m a naughty Tory.” Lord Burnett is contemplating writing a briefing for parliamentarians on the correct boundaries between the legislature and the judiciary.

• John Carr’s Escape from the Ghetto, about the extraordinary true tale of boy’s escape from a fenced ghetto in Poland during World War II and his journey across Nazi-occupied Europe remains available to purchase at Golden Hare Books.

In the courts:

• In Francis, R (On the Application Of) v The Secretary of State for Health And Social Care [2020] EWHC 3287 the High Court held that it was lawful for the Secretary of State to have written regulations empowering the police to enforce self-isolation without the need for judicial oversight, where the enabling legislation requires that a justice of the peace make a decision with regard to each instance of keeping someone in ‘isolation’. Hickinbottom LJ determined that ‘self-isolation’ could not be considered the same as ‘isolation’ as described in the enabling Act, and so the requirement for judicial management did not apply. The case is in the same vein as the recent defeat of Simon Dolan’s challenge to the lockdown restrictions, considered in full this week by Rosalind English.

• In Mahboubian, R (On the Application Of) v The Secretary of State for the Home Department [2020] EWHC 3289 (Admin) (03 December 2020), the High Court held that the Home Secretary had not breached her duties under Article 5(1)(f) of the European Convention on Human Rights to effect deportation within a reasonable timeframe in the context of a man who remained in immigration detention following the service of his prison sentence for sexual assault. Although he was granted immigration bail, the court held that the coronavirus pandemic had rendered it “virtually impossible” for the Home Office to find him suitable accommodation, in part also due to the sexual nature of his offences.

• In EOG (Anonymity Order Made) v Secretary of State for the Home Department [2020] EWHC 3310 Mostyn J determined that the UK’s obligations under Article 10 of the Convention on Action against Trafficking in Human Beings (“ECAT”), preventing the deportation of victims of modern slavery, extended to the granting of the usual rights afforded by discretionary leave to remain. Without discretionary leave, victims of trafficking and slavery could be left waiting for many months until they receive a conclusive decision on their status as a victim. During this time, they are unable to work, receive state accommodation or even access NHS services. This situation is incompatible with the state’s obligation not to remove persons who are reasonably suspected of being victims of slavery.

On the UKHRB:

• 1COR’s Dominic Ruck Keene questions the level of analysis that has been conducted on COVID transmission at religious gatherings in light of the specific protections afforded to public and communal worship by Article 9 ECHR.
• 1COR’s Rosalind English explores the bizarre history of pseudolaw that has been employed by businesses to stay open during the coronavirus pandemic, and the recent attempt to deploy it in relation to a Canadian custody battle.
• 1COR’s Marina Wheeler QC reviews the case of R (on the application of Quincy Bell and A v Tavistock and Portman NHS Trust and others where the court determined that children experiencing gender dysphoria were highly unlikely to be capable of legally consenting to receiving hormone blockers and suggesting that clinicians seek the advice of the court as regards children aged between 16 and 18.
• Rosalind English summarises the Court of Appeal’s conclusions on Mr Dolan’s challenge to the legality of the Coronavirus Regulations handed down in October.
• Samuel March examines the introduction of  The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 which curbs some of the harshness of the previous regime under The Police Act 1997.
• On the Law Pod UK podcast, Rosalind English and Amelia Walker discuss the decision of In the Matters of ACC, JDJ and HPP  where the extent of deputyship powers was considered.