The Weekly Round-Up: #KillTheBill, FPN reviews, and rights under threat in India

3 May 2021 by Byul Ryan-Im

In the news:

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.

Thousands of people throughout England and Wales marched in protest against the Police, Crime, Sentencing and Courts Bill on May Day, under the slogan and hashtag “Kill The Bill”.  Twelve people in Newcastle and nine in London were reportedly arrested.  Among other provisions, the bill would increase police powers to tackle “unauthorised encampments” and “non violent protests that have a significant disruptive effect on the public or on access to Parliament”.  It would also “ensure that authorities can extract information from digital devices”, while protecting victims’ privacy.  The bill passed its second reading earlier this month and the Joint Committee on Human Rights this week heard evidence on its potential human rights impacts.  Jules Carey, head of Bindmans LLP’s actions against the police and state team, said the bill’s provisions “clearly violate international human rights standards, and they constitute a savage attack on the right to peaceful assembly”.

Human Rights Watch (HRW) has called on the Indian government to ensure equitable health care, uphold freedom of speech and reduce the prison population as it tackles the world’s fastest-growing Covid-19 crisis.  The organisation says the Indian government ordered almost 100 social media posts to be removed, most of which criticised the government’s handling of the crisis.  Despite calls from multiple hospitals for more oxygen supplies, the Chief Minister of Uttar Pradesh state denied there was any oxygen shortage and has told officials to take action under the National Security Act and Gangsters Act against anyone who spreads “rumours”.  Healthcare experts and courts have criticised the government’s lack of investment in India’s health infrastructure during the pandemic and, according to HRW, the government has also not followed the United Nations’ calls for governments to release “every person detained without sufficient legal basis” to prevent growing infection rates.  The organisation also called on the United Kingdom, among other countries, to end its opposition to a proposal from India and South Africa at the World Trade Organisation’s TRIPS Council, which would temporarily waive intellectual property rules on Covid-19-related vaccines and other medical products.

In the courts:

• A Local Authority v C & Ors [2021] EWCOP 25 – the Court of Protection held that it would be lawful and not in breach of the Sexual Offences Act 2003 (SOA 2003) for carers to arrange for an autistic man (“C”) to engage the services of a sex worker.  Doctors and social workers agree that C has the capacity to engage in sexual relations and to decide to have contact with a sex worker.  This arrangement could be made through a charity that provides sexual services for people with disabilities. Mr Justice Hayden stated he was “not considering any plan for C to visit a sex worker”; that decision was for C’s carers to make after a comprehensive risk assessment.  He instead only considered the interpretation of section 39 SOA 2003, which criminalises care workers who cause or incite sexual activity.  Hayden described the aim of the act as “to empower, liberate and promote the autonomy of those with mental disorders”, and the mischief of section 39 as “exploitation of the vulnerable”.  To find the proposed acts of the carers in breach of section 39 would require “a distortion of the plain language of the statute and a subversion of the consistently reiterated objectives of the SOA”.  The respondent Justice Secretary was granted permission to appeal the finding, which his counsel called a “landmark” judgment.
• Zabolotnyi v The Mateszalka District Court, Hungary [2021] UKSC 14 – the Supreme Court unanimously dismissed an appeal against an extradition request from the respondent Mateszalka District Court of Hungary.  The appellant, Mr Zabolotnyi, submitted that there was a real risk of his being imprisoned in Hungary in conditions amounting to inhuman or degrading treatment contrary to ECHR article 3.  The District Judge had been satisfied that there was no need to request assurance from Hungary in respect of its prison conditions, as it was aware of its ECHR obligations.  In a different case the following year (Fuzesi v Hungary [2018] EWHC 1885 (Admin)), it was held that prison condition assurances are required to permit extradition to Hungary.  Following this case, Mr Zabolotnyi received such assurances from the Hungarian Ministry of Justice.  On appeal to the Divisional Court, Mr Zabolotnyi was refused permission to rely on fresh evidence, comprising reports from prisoners of alleged breaches of assurances given to them before extradition to Hungary.  The Divisional Court held that evidence concerning such breaches of assurance could only be admitted if it was “manifestly credible, directly relevant to the issue to be decided, and of real importance for the purpose of that decision”.  The Supreme Court held there is no such heightened test for evidence admissibility but dismissed the appeal on the basis that the fresh evidence was not decisively in favour of Mr Zabolotnyi and so would not have resulted in a different case outcome.  Per section 27 of the Extradition Act 2003, the Divisional Court was therefore bound to uphold the District Judge’s decision.

On the UKHRB:

• Alice Kuzmenko looks at the Immigration Removal Centre rules
• Caroline Cross examines a case concerning an inquest into an immigration detainee’s death
• The latest episode of Law Pod UK discusses three Court of Protection cases concerning capacity to consent and vaccination