The Weekly Round-up: stop-and-search powers, human trafficking and MI5 informants

23 May 2022 by Tabitha Hutchison

In the news:

• On 16 May, the Home Secretary announced in a letter to police forces that she is permanently lifting restrictions on the use of stop-and-search powers under Section 60 of the Criminal Justice and Public Order Act, which give police officers the right to search people without reasonable grounds in an area when they expect serious violence, and to look for weapons before they can be used, or those used in a recent attack. The new changes will lengthen the periods for which the powers can be in force and by which they can be extended, and a lower rank of officer will be able to authorise their deployment. In addition, the officer will now only need to anticipate that serious violence “may” occur, not that it “will” occur. Concerns have consistently been raised around the powers on the basis that they disproportionately affect black and minority ethnic communities. For instance, in the year to March 2021, black people were seven times and Asian people two-and-a-half times more likely to be stopped and searched than white people.
• In the first Ukraine war crimes trial since the invasion by Russia, a Russian tank commander has pleaded guilty to shooting dead a 62-year-old civilian. Even in light of the guilty plea, for the suspect to be convicted and sentenced, the three judges hearing the case will have to reach a unanimous verdict. The suspect faces life in jail.

In the courts: 

• On 16 May, judgment was handed down in BVN, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 1159 (Admin). This was a judicial review claim in relation to the treatment of a migrant who had been identified as a potential victim of human trafficking. (1) Under the first ground, the Court rejected the proposition that the Defendant’s statutory guidance, issued under section 49 of the Modern Slavery Act 2015, must provide for an individual to be given information or advice before withdrawing from the National Referral Mechanism (the UK’s framework for identifying and supporting victims of modern slavery). The Claimant was therefore unsuccessful in arguing that the guidance is unlawful because it permits a potential victim of trafficking to withdraw from the NRM without imposing a requirement of informed consent (and/or was it therefore unlawful for the Defendant to take steps to remove the Claimant from the UK following such a withdrawal). (2) As for the second ground, the Claimant was successful in arguing that if the High Court grants unconditional bail to a person in immigration detention, it is unlawful for the Secretary of State then to impose a condition on the person’s release, requiring them to report periodically to a specified location. The reporting condition had reduced the scope of the liberty granted by the High Court and the Defendant’s omission to request such a condition from the Deputy Judge had not empowered her to impose it herself. 
• The judgment in HM Attorney General for England And Wales v British Broadcasting Corporation (BBC) (No. 3) [2022] EWHC 1189 (QB), handed down on 18 May, may allow the BBC to broadcast a programme about a man (X) the BBC alleges exploited his status as a covert human intelligence source for MI5 and physically and psychologically abused two female partners. The Attorney General had previously obtained an injunction to prevent the BBC from disclosing information likely to identify X, which still allowed the BBC to convey core elements of the story. As to what constitutes “identifying information”, the Court has now held that the proper approach was (a) for the parties to agree that the order will contain a general provision prohibiting publication of information which directly or indirectly identifies X, and (b) for the Court to resolve any crystallised dispute about whether a particular piece of information would be identifying, particularly because part of the case had involved a closed material procedure. (b) was considered in Part II of the judgment, which was handed down in private. The BBC has responded to the judgment by saying that the story is “firmly in the public interest” and will run in the coming days.
• On 19 May, the Court of Appeal dismissed the appeal in YZ v Chief Constable of South Wales Police [2022] EWCA Civ 683 on all four grounds. It held that (1) the Respondent had not in fact placed the burden on YZ to show why his personal data should not be retained, in conflict with s.34(3) of the Data Protection Act 2018, and had rightly carried out a thorough review of the information available to it; (2) the Judge had not applied the wrong legal test because he had reached his own decision as to “strict necessity” under the DPA; (3) the Judge did not err in holding that it was strictly necessary for law enforcement to process information that included the fact that YZ was charged with 3 counts of rape and subsequently acquitted; and (4) there could be no standalone breach of Article 8 of the ECHR, and if retention was compliant with the DPA—which the Court held it was—it was also compliant with Article 8.