The Weekly Round-up: domestic abuse, stop and search, computer hacking

11 January 2021 by Hugo Murphy

In the news:

Last week’s round-up looked at the measures and messaging of the UK’s latest lockdown. This week we ask what it means for vulnerable children and victims of domestic abuse. Are sufficient legal safeguards in place?

For vulnerable children, it unfortunately seems not. On Wednesday, a Guardian investigation revealed that thousands of children were sent to unregulated care homes last year, while local authority provisions were stretched throughout many months of restrictions. These homes include supported accommodation facilities for over 16s, which are not subject to any inspections by regulators in England and Wales. The Children’s Commissioner for England Anne Longfield has warned that the children’s care system has been ‘left to slip deeper into crisis, seemingly unable to stop some of the most vulnerable children from falling through the gaps.’

Thankfully, stronger protections for victims of domestic abuse are on the horizon. On Tuesday, the long-awaited Domestic Abuse Bill completed its second reading in the House of Lords. The Bill brings emotional, coercive or controlling, and economic abuse under a single statutory definition of domestic abuse, and imposes a statutory duty on local authorities to shelter victims and their children. Once passed, it will also create the role of Domestic Abuse Commissioner, to be assumed by Nicole Jacobs. 

Further protections cannot come soon enough. Calls to the National Domestic Abuse helpline increased by 66% when lockdown restrictions were first imposed last March, and frontline services remain desperately underfunded and overstretched.

In other news:

• A group of eminent lawyers, including former Court of Appeal judges Sir Stephen Sedley and Sir Anthony Hooper, condemned Education Secretary Gavin Williamson for warning that universities which refuse to adopt the International Holocaust Remembrance Alliance’s definition of antisemitism will face sanctions. ‘The legally entrenched right to free expression is being undermined by the promotion of an internally incoherent “non-legally binding working definition” of antisemitism,’ they wrote in a letter published by the Guardian.
• Last week’s round-up featured District Judge Vanessa Baritser’s ruling against Julian Assange’s extradition to the US, which was delivered on Monday. Two days later, Assange’s application for bail was refused, on account of the substantial risk that he might abscond while lawyers for the US appeal the extradition ruling. Assange remains in Belmarsh Prison, where he has spent the past 18 months, and where his lawyers maintain a severe coronavirus outbreak puts the Wikileaks founder’s health at risk.
• Friday was a busy day for civil liberties in the UK. The Metropolitan Police announced new policy guidance for officers, including a requirement to justify the use of handcuffs pre-arrest. This announcement followed the conclusion of a review authorised by Commissioner Cressida Dick in July 2020, which was triggered public outrage over the stop and search of Olympic athlete Bianca Williams in July. Meanwhile, it was revealed that over 1,000 Extinction Rebellion activists have been taken to court for protests which brought large parts of London to a standstill. 

In the courts:

• Privacy International v Investigatory Powers Tribunal [2021] EWHC 27 (Admin): The High Court held that security and intelligence services cannot use non-specific warrants for sweeping computer hacking measures. The judicial review challenge was brought by Privacy International against a 2016 Investigatory Powers Tribunal decision concerning the lawful scope of section 5 of the Intelligence Services Act 1994, which empowers the Secretary of State to authorise warrants for the ‘interference with property or with wireless telegraphy’. In their joint judgment, Bean LJ and Farbey J reaffirmed the common law’s 250-year-old aversion to general warrants. (They cited such constitutional lodestars as Blackstone’s Commentaries and Lord Camden’s judgment in Entick v Carrington, even describing GCHQ officials as modern-day ‘successors to the King’s Messengers in the 1760s’.) Erosion of this longstanding principle would require express wording in the statute, which it was ultimately deemed not to contain. Consequently, any warrant under the provision can only be lawful, they held, ‘if it is sufficiently specific for the property concerned to be objectively ascertainable on the face of the warrant.’ They considered by way of example that reference to ‘every mobile phone in Birmingham’ might satisfy this requirement, but reference to ‘the mobile phone of any person conspiring to commit acts of terrorism’ would not, acknowledging that a large, ‘fact-sensitive’ grey area lay in-between. The judgment, which has so far escaped notice in the press, may well pose significant but unseen consequences for the state of digital surveillance in the UK.

On the UKHRB:

• In a two-part analysis, Ruby Peacock examines the history of medical claims brought under Article 3 of the European Convention on Human Rights
• On Law Pod UK, Professor Catherine Barnard talks us through Boris Johnson’s Brexit deal with the EU.