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Failures of the criminal justice system were once again under the spotlight this week.
On Wednesday, business minister Paul Scully announced a statutory inquiry into the sub-postmaster scandal, following widespread outrage at one of the greatest miscarriages of justice un UK legal history. After the Court of Appeal quashed the convictions of 39 former sub-postmasters last month, hundreds more have been invited to appeal their own convictions for theft and fraudulent accounting, which may have been based on faulty evidence from the Post Office’s ‘Horizon’ digital accounting system.
The full public inquiry may include an investigation of the role played by Post Office lawyers in possible failures to disclose important evidence discrediting the accuracy of the Horizon system. The Solicitors Regulation Authority had already confirmed last month that it was monitoring the case, after the judgment levelled criticism at a culture among the prosecution counsel of ‘seeking to avoid legal obligations when fulfilment of those obligations would be inconvenient and/or costly.’
The inquiry will be led by Sir Wyn Williams, President of Welsh Tribunals, and is expected to submit its findings in autumn 2022.
Meanwhile, a stand-off emerged between the Home Secretary and an independent panel set up to investigate the murder of private investigator Daniel Morgan in 1987, for which no one has been convicted.
The claimant YZ had been acquitted on three counts raping his former wife but details concerning these matters remain on the Police National Computer (PNC). These proceedings concerned whether such retention was lawful.
The question at the heart of this application was whether onus was on the competent authority to justify its processing of the claimant’s dat was lawful and fair under the Data Protection Act 2018. The claimant’s argument was that the relevant guidance (issued pursuant to the 1984 Police and Criminal Evidence Act) to the police was not compatible with this statutory requirement as it put the onus on an applicant for deletion to give reasons for that deletion [para 40].
On 19 May 2021 the Court of Appeal was asked to determine whether a Conclusive Grounds Decision made by the Single Competent Authority (“SCA”) that a person is a victim of modern slavery is admissible evidence in a criminal trial.
Respectfully disagreeing with the decision of the Administrative Court in DPP v M [2020] EWHC 3422 (Admin) (discussed on the Blog here), the Lord Chief Justice held that SCA caseworkers are not experts in human trafficking or modern slavery, further noting that their reports do not comply with the expert evidence requirements set out in CrimPR 19. Therefore, a decision by the SCA is not admissible in a criminal trial.
Clare Ciborowska and Richard Ager join Rosalind English in the first of a series of discussions from the family law team at 1 Crown Office Row in Brighton, highlighting developments and analysing case law from the family courts.
In Episode 144 of Law Pod UK, we focus on the challenges presented to family court judges by the obligation to conduct full fact finding hearings where allegations of domestic abuse are raised. The details of this duty are to be found in Practice Direction 12J FPR2010, but the difficulties have yet to be played out in practice. There are problems with the overlap between criminal and family law, with the lack of legal aid for defendants, and, above all, the difficulties faced by judges tasked with the business of trying to run an in inquisitorial hearing whilst being as supportive as possible to litigants in person.
Clare and Richard talk about the various issues arising out of the practice direction and the case law that preceded and followed PDJ12. Here, as promised, are the citations and references touched upon in the podcast:
In Northern Ireland, the Troubles are not the only part of its troubled past and present. In March this year, the Stormont administration found itself mired in controversy over women’s reproductive rights and access to abortion services. In April, a fresh controversy arose: a legislative ban on so-called “gay conversion therapy”. On 18 March 2021, Ulster Unionist Party MLAs Doug Beattie and John Stewart tabled a private member’s motion in the Northern Ireland Assembly calling for a legislative ban on the practice. The motion was debated on 20 April, with one amendment ringfencing religious activities from the proposed ban, taking centre-stage.
To characterise the debate which followed as polarising would be to put it mildly. The Assembly Hansard for 20 April records angry, frustrated exchanges between MLAs who called for safeguarding the LGBTQ community from harmful practices (condemned by the UN Human Rights Council as creating “a significant risk of torture”) and MLAs who called for safeguarding the free exercise of religion.
In the event, the DUP amendment failed and the UUP motion was passed unamended by 59 votes to 24, providing Communities Minister Deirdre Hargey MLA with a strong mandate to bring legislation to ban conversion therapy in Northern Ireland. However, that was not the end of the matter. In the immediate aftermath of the Assembly vote, the DUP signalled its intent to block legislation unless “robust protections for churches” were included. Eight days after the vote, the Northern Ireland First Minister and DUP leader Arlene Foster MLA faced significant rebellion in the party against her leadership and announced her intention to resign both the leadership of the DUP and the First Ministership. The extent to which the motion to ban conversion therapy played a part in the rebellion against Foster remains a matter for debate, especially given concerns about the impact of the DUP’s political stance on the very recently enacted access to abortion and same-sex marriage in Northern Ireland.
Almost a month later, Mr Justice Scoffield in the Northern Ireland High Court handed down judgment in JR111’s application for judicial review [2021] NIQB 48, declaring the language of “disorder” in the Gender Recognition Act 2004 (GRA) to be in breach of the ECHR.
As many around the world celebrated the International Day against Homophobia, Biphobia and Transphobia on 17 May, the events of the past month were a reminder of how different the story of LGBT equality was in Northern Ireland, compared to Great Britain.
In the Queen’s Speech last week, the government presented its legislative programme for the next session of parliament, including a number of bills with important human rights implications. The speech was of particular interest because of the extent to which Brexit and COVID-19 have dominated the prime minister’s time in office so far.
Last Tuesday’s to-do list includes an enormous 31 bills, listed in full here and set out in greater detail here. Two bills with key implications are addressed below.
In October 2020 the App Drivers & Couriers Union (‘ADCU’) filed a legal challenge against Uber Technologies Inc. for the dismissal of drivers by an algorithm in the UK and Portugal. The District Court of Amsterdam heard claims by the ADCU on behalf of three drivers from the UK, and a fourth driver from Lisbon, Portugal, was represented by the International Alliance of App-based Transport Workers.
The claims were brought under Article 22 of the General Data Protection Regulation (Regulation (EU) 2016/679) (‘GDPR’). The drivers’ complaints related to dismissals resulting from, among others, Uber systems’ detection of irregular trips associated with fraudulent activities in one case, and the installation and use of software with the intention and effect of manipulating the Uber’s Driver App in another case. The drivers were dismissed, given no further explanation, and denied the right to appeal. The Court was asked to determine to what extent the GDPR could protect individuals from unfair automated decision-making, specifically, individuals have the right to certain protections from automated decisions which create negative affects but are carried out without meaningful human intervention.
Campaigners have warned that a loophole allowing children aged 16 or 17 to get married with their parents’ consent is enabling forced child marriages to take place across England. Current laws against forced marriage to do not specifically protect children, and there are no laws in the UK to prevent religious or customary child marriages. The organisation Girls Not Brides UK, who sent a letter to the Prime Minister warning of the impact of this loophole last week, have suggested that child marriages disproportionately affect girls, and often lead to fewer educational and employment opportunities and a higher risk of domestic violence. The government’s Forced Marriage Unit, which collects data on cases of forced marriage, shows that more than a quarter of cases involve children. The Conservative MP Pauline Latham is currently promoting a bill in Parliament aimed at criminalising child marriage completely.
Lawyers working on cases dealing with Northern Ireland’s troubled past know that this field of legal work develops slowly. Sometimes, however, developments occur at an unexpected and unwelcome speed. Such has been the case this week. From the collapse of a controversial trial to the reporting of a legislative “amnesty”, the legacy of the Troubles remains an indelible part of both judicial business and daily life.
The fatal shooting of Joe McCann (The Queen v Soldiers A & C)
Joe McCann had been a member of the Army Council of the Official IRA. In 1972, he was the Officer in Command, First Battalion of the Official IRA and in charge of the Markets area of Belfast. He was suspected to have been involved in the murders of two soldiers and the attempted murders of four police officers (among other serious incidents). In the afternoon of 15 April 1972, he was seen by a Royal Ulster Constabulary (RUC) police officer who alerted a nearby patrol of paratroopers which included soldiers A and C. The police officer tried and failed to arrest Joe McCann, who was running away from him and the paratroopers. The police officer shouted at him to halt but he kept running. There was then sudden gunfire from behind the police officer, where the paratroopers were standing. Joe McCann was struck by two or possibly three bullets and died quickly at the scene. No forensic analysis was undertaken to determine who had fired the fatal shot.
Episode 143 features Isabel McArdle and Sarabjit Singh QC of 1 Crown Office Row. Isabel practises in indirect tax, healthcare law, personal injury and public law. Sarabjit (“Sab”) specialises in tax, with a particular emphasis on all forms of indirect tax and the interface between tax and public law. They have both given seminars on the implications of Brexit for tax lawyers. In this episode, Rosalind English discusses with Sab and Isabel a number of laws containing Henry VIII powers, including the Childcare Act 2016, Section 8 of the European Union Withdrawal Act 2018, Section 31 of the EU Future Relationship Act 2020, the Coronavirus Act 2020 and Section 51 of the Taxation (Cross-Border Trade) Act 2018. Emma-Louise Fenelon did of course explore this subject in depth with the Public Law Project and Lord Anderson of Ipswich QC in Episode 129: Brexit and the Flaws of Delegated Legislation ; this episode takes this important subject further.
Henry VIII powers enable a minister to amend primary law by secondary legislation, effectively bypassing parliament. They also touch on the popularity of so-called “skeleton bills”. These bills are favoured by those in power because they have no policy in them so there’s nothing to scrutinise by both Houses of Parliament. And Henry VIII clauses are what feed these bills.
Following Brexit, everything from financial services, immigration from Europe, fisheries, agriculture – can all be achieved under Henry VIII in skeleton bills. The concern, from a constitutional perspective, is that there’s a lack of parliamentary scrutiny. They give huge power to ministers to amend and repeal Acts of Parliament.
We have to apologise for the building works sound effects in the background of this episode. We welcome our listeners to perceive them as an appropriate metaphor for the government hammering home their policies under these Henry VIII powers.
People aged 42 and over are now able to book their Covid-19 vaccines, joining the more than 33.8 million people in the UK who have received their first dose. The news comes as the Joint Committee on Human Rights called for a review of all fixed penalty notices (FPNs) for lockdown breaches and called the system “muddled, discriminatory and unfair”. The committee chair, Harriet Harman MP, said the “lack of legal clarity” meant an unfair system which “disproportionately hits the less well-off and criminalises the poor over the better off”. The report highlighted concerns about FPN validity, an inadequate review and appeals process, the size of penalties and the criminalisation of those unable to pay. A CPS review found that 27% of coronavirus-related prosecutions that reached open court in February were incorrectly charged. The lack of an adequate means to seek review of an FPN, other than through criminal prosecution, significantly increases the risk that human rights breaches will not be remedied, according to the committee. The importance of ECHR Articles 7 and 8 (no punishment without law and right to family and private life, respectively) was highlighted in particular.
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