The Weekly Round-Up: Colston Four acquitted, the new offence of breastfeeding voyeurism, and the Afghan Citizens Resettlement Scheme

10 January 2022 by Calla Randall

In the news:

The Colston Four have been acquitted of criminal damage by a jury for their role in pulling down the statue of Edward Colston in Bristol and pushing it into Bristol Harbour during a Black Lives Matter protest in June 2020. Under the Criminal Damage Act 1971, a defendant will have a defence to criminal damage if they can prove they had a ‘lawful excuse’ for their actions. In this case, the four defendants put forward three lawful excuses. First, they argued that they had been acting to prevent the crime of public indecency which was being committed in the retention of the statue after 30 years of petitions to remove it, given the serious offence and distress it caused. Relatedly, they contended that Bristol County Council had committed misconduct in failing to take it down, but this was withdrawn from the jury by HHJ Peter Blair QC as there was insufficient evidence. Second, they argued that they genuinely believed the statue was the property of Bristol citizens, and that those citizens would consent to the statue being pulled down. Finally, they contended that a conviction would be a disproportionate interference with their rights under Articles 10 and 11 of the European Convention on Human Rights (to freedom of expression and assembly). The verdict has been criticised by some as a politically motivated decision which has no proper basis in law, and a petition to retry the protesters has received over 13,000 signatures. Supporters of the Colston four maintain on the other hand that their excuses have a real foundation in the law, and that therefore it had been open to the jury to find the defendants not guilty.

The approach of juries in protest cases has come under further scrutiny in light of the new proposal in the Police Crime, Sentencing, and Courts Bill to increase the maximum sentence for the damage of memorials to 10 years imprisonment, irrespective of the cost of the damage. The increase in sentence means that all cases would necessarily be tried by a jury, which some legal commentators have suggested makes it more likely that perpetrators will go free.

In other news:

• The Government has announced two changes to the Police Crime, Sentencing, and Courts Bill which will be put before Parliament on Tuesday.
  • Firstly, domestic abuse victims in England and Wales will be given more time to report incidents of common assault or battery. The current rule requires that a prosecution begin within six months of an offence being committed, a time limit which according to recent figures has resulted in 13,000 cases being dropped by the police during the last five years. Under the revised rules, the prosecution will have to begin six months after the date the incident was reported, and two years from the date of the offence. This is seen as an important change given that domestic abuse incidents are often reported later than other crimes.
  • Secondly, a new offence of breastfeeding voyeurism is proposed, which will make it illegal to take photographs of breastfeeding mothers without their consent. The offence prescribes a maximum sentence of two years, and the potential for the perpetrator to be put on the Sex Offenders register. While the Voyeurism Act was passed in 2019, which made it illegal to take non-consensual photographs of the lower body (also known as ‘up-skirting’), this did not cover the upper body, meaning that no crime was committed in taking photos of breastfeeding mothers.

• The Government announced on Thursday that it had officially opened the Afghan Citizens Resettlement Scheme which aims to resettle 20,000 refugees from Afghanistan to the UK over the next five years. According to the Justice Secretary, the scheme will aim to take 5,000 refugees in the first year. While the scheme was broadly welcomed by immigration charities and Afghan support groups, there has been widespread criticism of the delay in starting the programme. The Prime Minister first announced the programme on 18^th August 2021, stating that 5,000 people would be resettled that year, but as of 6^th January 2022, only one family has been resettled through the scheme, which has led to concerns over the safety of those Afghans waiting to be resettled. Furthermore, the Justice Secretary stated that the first 5,000 to be resettled will be people already in the UK, meaning that refugees still in Afghanistan or neighbouring countries will likely have to wait until 2023 to be offered aid.

• The naming of the Malaysian company Supermax as an approved supplier for PPE by the UK Government has given rise to a judicial review by Supermax workers. The company has faced numerous allegations of forced labour in its migrant worker factories since 2019, resulting in imports from the company being banned in the United States, and paused in Canada. While the UK Government did launch its own investigation into the company after the US ban, before that was concluded, the company was named as an approved supplier of surgical gloves, receiving a contract worth £316 million in 2020. Wilson Solicitors have based the claim on a question about whether proper verification was carried out before the contract was awarded, stating that the Government’s approach ‘… undermines the UK’s claims that they are world-leading in the fight against modern slavery.’

In the courts:

•  Naeem, R (On the Application Of) v Secretary of State for Education [2022] EWHC 15 (Admin): The High Court found for the Claimant in this case where a would-be university student with Indefinite Leave to Remain in the UK was deemed to be ineligible for student finance because he had not received settled status before the deadline for registration. The failure for granting status in time was due to the Government removing the Super Priority and Priority routes for applying for settled status, which take 24 hours and 5 days respectively, due to the Covid-19 pandemic, forcing the Claimant to use the slow route which takes up to six months. Mrs Justice Foster DBE found that the Claimant’s complaint did fall within the ambit of his Article 14 right not to be subjected to discrimination, and applying criteria from Tigere, the Claimant was within the class of persons sufficiently connected with this country to justify receipt of student finance, and he would not be able to pursue the degree, thereby infringing his rights. Finally, the judge found that the infringement was not proportionate to the aim pursued by the Secretary of State, because they could easily have mitigated the severe effect of withdrawal of the Priority Services in the limited way required to protect the group.

On the UKHRB:

• Anurag Deb discusses the Supreme Court case of McQuillan, McGuigan and McKenna which considered the effectiveness of police investigations into events in the Northern Ireland conflict.
• Rosalind English reports on the ECHR’s rejection of the ‘gay marriage cake’ case, Lee v. the United Kingdom (application no. 18860/19).
• Appin Mackay-Champion covers the Brook house inquiry which is investigating the mistreatment of male detainees at the Immigration Removal Centre.
• Rajkiran Barhey discusses the case of R (Morahan) v West London Assistant Coroner[2021] EWHC 1603 (Admin)on the meaning of Article 2.