The Weekly Round-Up: New Police Powers and Domestic Abuse in the Family Courts

5 April 2021 by William Craig Cohen

In the news

On Friday, former Home Secretary Lord Blunkett raised his issues with the Police, Crime, Sentencing and Courts Bill, an enormous piece of legislation that reforms much existing legislation and common law offences. Lord Blunkett pointed to the difficulties the police could face in interpreting the new law, and the sensitive nature of the relationship between the police and protestors. The Bill is currently at the Committee Stage of Parliamentary procedure. Particular attention has been drawn to s.59 of the Bill, which purportedly codifies the common law offence of public nuisance, following the recommendations of the Law Commission’s 2015 report, Simplification of Criminal Law: Public Nuisance and Outraging Public Decency. This section would create an offence of ‘intentionally or recklessly causing public nuisance’, defined as where a person’s act or omission causes serious harm to the public or a section of the public. Subsection (2) states that this offence can be constituted where ‘a person’ suffers ‘serious distress, serious annoyance, serious inconvenience or serious loss of amenity’. On indictment, a defendant is liable to imprisonment for a term up to ten years. While the Law Commission’s recommendation that the fault element should be intention or recklessness as opposed to ‘knew or should have known’ was adopted, the significant maximum term is a new addition.

The common law offence of public nuisance has already been much reduced by existing statutory provisions, and was criticised by the House of Lords in R v Rimmington (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) and R v Goldstein (Appellant) (On Appeal from the Court of Appeal (Criminal Division)), 27 October 2005 where prosecutors attempted its use to circumvent more appropriate statutory offences with lower sentences or time bars. Their Lordships also expressed the view that ‘It may very well be, as suggested by JR Spencer … that “There is surely a strong case for abolishing the crime of public nuisance”.’  The explanatory note to the Bill makes clear that the activities of protestors during the Extinction Rebellion protests were at the front of drafters’ minds, naming ‘gluing themselves to buildings or vehicles, blocking bridges or otherwise obstructing access to buildings’ as being key problem areas, as was ensuring ‘vehicular access to Parliament’. While the maximum term is highly unlikely to be used except in the most serious cases, in light of the overall purpose of the legislation, the ambit of the defence of ‘reasonable excuse’ is unlikely to include the right to protest alone, enshrined in Article 11 ECHR. Last month, over 150 organisations warned of the profound impact the Bill could hold. The Labour party duly switched its stance from abstention to opposition.

The vacillating rules on protests during the COVID-19 pandemic and the Black Lives Matter movement have brought protestors and police into frequent conflict, and Lord Blunkett’s observation that further police powers can lead to ‘more anger towards institutions including the police, the judiciary and parliament’ is not hollow. The recent protests in Bristol saw a significant level of violence against the police, as the city which tore down a statue of historic slave trader Edward Colston voiced its dissent against a ‘badly drafted’ Bill which also specifically includes ‘Criminal damage to memorials’ as a form of criminal damage. While such violence is deplorable, the Bill which is itself designed to tackle serious violence already seems to be having the opposite effect.

In other news:

• On Tuesday, the House of Lords constitution committee published a report on the impact of COVID-19 on the court system. They cited the now familiar issues with remote hearings, legal aid cuts and the mounting backlog of 56,875 criminal cases, many of which are more complex jury trials. On 28 September 2020, the custody time limit (the maximum period that those on remand in prison awaiting trial can be held in prison) was extended from six to eight months, stretching the Article 6 right to a trial within a reasonable time. The report called for an increase to the legal aid budget and a greater number of Nightingale courts.

• Thirty petrol bombs were thrown at police and three vehicles were hijacked and set alight during rioting in Newtownabbey, on the outskirts of Belfast, on Saturday night. A man has been arrested on Sunday in response. The disorder marks a second night of violence following Friday’s riots, when 27 police officers were injured and cars set on fire.

In the courts:

• On Tuesday, The Court of Appeal handed down its judgment in Re H-N and Others (children) (domestic abuse: finding of fact hearings). The case concerned the definition of ‘domestic abuse’ in family court proceedings for custody under the Children Act, and sought to provide some guidance also on the definition of rape. While the judgment calls for family judges to have ‘a proper understanding of the nature of domestic abuse’, and cites the significance of further ‘training’, Dr Charlotte Proudman (who represented one of the appellant mothers in the case), pointed to the omission on ‘setting out a clear definition of rape in family cases’. Nevertheless, the court did make explicit that family judges were not to shy away from using the term ‘rape’ in their judgments, and they should refrain from becoming hung up on criminal definitions where it is relevant to the case at hand. Two of the appeals were granted, after findings that the judge had minimised the relevance of the father’s admissions of domestic abuse, and where the judge had cowed the mother into agreeing to a consent order under threat of having her child taken into care, after refusing to hear allegations of domestic abuse.

• In Mujahid, R (On the Application Of) v First Tier Tribunal (Immigration and Asylum Chamber) [2021] EWCA Civ 449, the Court of Appeal held that where the Secretary of State decides not to grant indefinite leave to remain but grants an individual limited leave to remain, the Secretary of State will not be considered to “refuse a human rights claim” within the meaning of s. 82(1)(b)of the Nationality, Immigration and Asylum Act 2002. Refusing a human rights claim normally gives the individual a right of appeal to the First-tier Tribunal. Stuart-Smith LJ dismissed each strand of the Appellant’s arguments in turn, relying on strict statutory interpretation alongside the notion that Article 8 rights are not triggered where the Secretary of State’s decision does not “render the applicant liable to removal or a requirement to leave or refusal of entry.”