The Weekly Round-up: children’s social care, traveller discrimination and Ukraine war crime verdicts

31 May 2022 by Lucy Stock

In the news:

• On Monday 23, the Russian tank commander Vadim Shishimarin was sentenced to life in prison by a court in Kyviv. He previously pleaded guilty to killing Oleksandr Shelypov, 62. Shishmarin’s trial has been closely watched by investigators collecting evidence of possible war crimes to bring before the international Criminal Court (ICC) in the Hague. International law experts will also scrutinise the verdict of the 21-year-old tank commander; a key question arose from the proceedings about how much scope the Kyviv court has now left itself for sentencing Russians for more heinous or numerous offences.

• The Independent Review of Children’s Social Care, led by Josh MacAlister, was published on Monday 23 May. The report included more than 80 recommendations and suggested a windfall tax on the 15 largest children’s homes and fostering providers. Projections claim that by 2032 there could be approaching 100,000 children in care costing £15 billion per year. An investigation by The Times has demonstrated that many inexperienced or first-time owners of children’s home have opened residences in order to charge as much as £1,000 a day. MacAlister has also encouraged the government to consider adding those with care experience to the Equality Act.

• The Gender Recognition Reform (Scotland) Bill has caused controversy in recent years, with opponents raising concerns about how it could affect the rights of women and girls. On Tuesday, Ellie Gomersall – the first trans person to be elected as the president of NUS Scotland – and Malcom Dingwall-Smith, Sportscotland’s strategic partnerships manager, both gave evidence to the qualities, human rights and civil justice committee concerning its effectiveness. The former, asserted the limited powers of the bill to reduce crime in single-sex spaces, and the latter highlighted that the bill would have no impact on a section of the 2010 Act that allows trans people to be barred from the sports of their acquired gender if the governing body deems it interferes with ‘fair competition or the safety of competitors’.

• On Thursday, Britain’s equality regulator announced that it has launched a formal investigation into Pontins holiday parks due to continued concerns about discrimination against Gypsies and Travellers. Last year, Pontins owner, Britannia Jinky Jersey Limited, entered into a 12-month contract with the Equality and Human Rights Commission (EHRC), following allegations that the company operated a discriminatory booking policy. On the 18 February the EHRC terminated the contract, judging that Pontins had not taken the required steps to prevent unlawful race discrimination or honour its commitments under the agreements. The EHRC has now launched a formal investigation that will consider whether Pontins has committed unlawful acts under the Equality Act 2010.

In other news:

• On 25 May, the Republican governor Kevin Stitt signed into law an abortion ban bill, making Oklahoma the first US state to effectually outlaw all access to pregnancy termination since Roe v Wade. The law bans all abortions except when necessary to save the life of the woman, or to end a pregnancy caused by rape or incest if the crime has been reported to police. Modelled on a controversial law passed in Texas last year, the state will rely on private citizens to enforce the ban. Civilians can sue doctors or clinics who assist a woman to have an abortion with an award of up to $10,000 in damages and reimbursed legal costs.

• The legal row over whether full-body swimsuits should be allowed in French municipal swimming pools will go before France’s highest administrative court on account of proposals made by the mayor of the city of Grenoble to loosen regulations. On the instruction of interior minister, Gérald Darmanin, a local court intervened and on Wednesday night suspended the new rules coming into effect on 1 June. The court ruled that these changes “seriously violated the principle of neutrality in public service”. The city of Grenoble has appealed the ruling and the case will now come before the Conseil d’Etat.

• 24 May saw the publication of the mass data leak of thousands of Xinjiang police files documenting detained Uyghurs. The hacked Chinese police photographs and documents, referred to as Xinjian police files, shed light on Beijing’s treatment of its Uyghur minority in Xinjiang. The release of the media has coincided with the visit of the UN high commissioner for human rights, Michelle Bachelet, to cities across China. China has denied allegations of any wrongdoing.

In the courts:

• On Tuesday, in Roman, R (On the Application Of) v London Borough of Southwark [2022] EWHC 1232, Milton Laines Roman won a judicial review of the London Borough of Southwark’s decision to refuse his request to be placed in priority Band 1 of the Council’s housing allocation scheme. The Council had accepted that Roman’s studio flat in Southwark was statutorily overcrowded, but only as a result of a “deliberate act” on the part of the Claimant which, under section 6.2 of the Housing Allocation Scheme, prevents one from qualifying for Band 1 of the Scheme. To qualify a “deliberate act”, Mrs Justice Lang turned to the Court of Appeal’s interpretation in R (Flores) v Southwark LBC [2020] EWCA Civ 1697, confirming that an act is deliberate if it is something which the person “intends to do”. The High Court also referred to Al-Ameri (FC) v Royal Borough of Kensington and Chelsea [2004] UKHL 4 for further clarification: the House of Lords held that where a person must choose between two options, one of those options being destitution, a person does not elect the alternative option of their own choice. Thus, Mr Roman’s challenge succeeded on the first of three grounds, namely that he was unable to afford alternative suitable accommodation and he had no option but to move into statutorily overcrowded accommodation.

• On 27 May, judgement was handed down in Green & Ors v Metropolitan Police Commissioner [2022] EWHC 1286 (Admin). The case centred around the human rights compatibility of Regulation C9 of the Police Pensions Regulations 1987 (“PPR87”), which dictates that a widow or surviving civil partner is no longer entitled to their deceased partner’s pension should they remarry or form a new civil partnership. The legal challenge, brought by the Claimants- Ms Green, Ms Jennings and Mr Sneller- stated that Regulation C9 Cessation is incompatible with their Convention rights under Articles 12, 8 and 14 (read with A1P1, the protection of property). The Court drew upon key authorities in their analysis of incompatibility including: (i) the Basic Four-stage Proportionality Discipline, citing R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621 and Bank Mellat v HM Treasury (No 2) [2014] AC 700; and (ii) the Basic Article 14 Four-Stage Discipline, drawing from In re McLaughlin [2018] UKSC 48 [2018] 1 WLR 4250. The Court found, however, by reference to twelve key features and themes, that the Home Secretary had discharged the onus of justifying Regulation C9 and its retention. Although acknowledging the impact of “Deprivation” and “Inhibition” caused by the Cessation mechanism of Regulation C, the Court had to “look at the ‘bigger picture’, in the words of Mr Justice Fordham, and remind the “judicial review Judge that they are not the policy-maker and pension scheme rule-maker”. The Claimants were granted permission to appeal.

• Also on Friday, in Pancu v Judicial Authority for Romania [2022] EWHC 1287 (Admin), the High Court dismissed an appeal on Article 8 ECHR grounds against an order for an Appellant’s extradition made by District Judge Zani on 26 May 2021. The Appellant is wanted to serve a 3-year sentence in Romania for burglary, having stolen train components valued at around £3,122. The arguments for appeal asserted that insufficient weight had been given to: (i) the delay of proceedings between the occurrence of the Appellant’s offence in 2009 and the dismissal of his appeal against conviction and sentence in December 2017; (ii) the interest of the Appellant’s 11 year-old daughter; and (iii) the relative lack of seriousness of the offence for which the Appellant was sought. Although the Court agreed that the District Judge had erred in his treatment of delay for the purposes of Article 8, it held that the Judge had not erred in his consideration of the impact of the extradition upon the Appellant’s 11-year old daughter nor in his description of the Appellant’s offences as “serious”. Crucially, the Court, with reference to Germany v Singh [2019] EWHC 62 (Admin), emphasised that “the delay on the part of the state authorities, whether or not culpable, is not a trump card, however long”. Furthermore, the Court found the years of delay from 2009-2017 to have little bearing on the Article 8 balancing exercise. It was deemed that the Appellant’s private and family life was only established in the UK from 2017, at which time he had already been convicted and sentenced to a significant term in custody in Romania.