The Weekly Round-up: social care spending, Stafford statements and Ukraine’s legal battle

10 June 2022 by Lucy Stock

In the news:

• The recent Health and Care Act 2022 has come under scrutiny for introducing a cap on social care spending. From October 2023, the government will introduce a cap of £86,000 on the amount anyone in England will need to spend on their care over their lifetime. The cap will no longer count contributions from local authorities towards care costs. Disabled people living in the UK already spend an average of £583 a month in relation to their healthcare. The cap is much larger than the £35,000 recommended by the 2011 Dilnot Commission. There are concerns the cap breaches the Equality Act 2010 by discriminating against disabled people and other groups.

• In a report published on Tuesday 31 May, the Information Commissioner’s Office highlighted the need to reduce the requirements for complainants in rape and serious sexual offence cases to sign Stafford statements. These forms give officers consent to obtain often highly sensitive third-party materials, including medical, education and counselling records. They are said to be undermining trust and confidence in the criminal justice system. The report also called for police to stop assuming alleged rape victims have consented to searches of their phones and other devices.

• An impact assessment paper on the dangers of lifting restrictions on police stop and search powers, dated January 2022, was published on Tuesday. In the equality impact assessment, commissioned by the Home Office, officials warned that easing of conditions could damage community relations and lead to more people from minority ethnic backgrounds being targeted.

• Also on Tuesday, two Russian soldiers, Alexander Bobikin and Alexander Ivanov, were sentenced to 11 years and six months in jail after a court in central Ukraine found them guilty of firing artillery at civilian areas. They pled guilty to firing Grad missiles on two villages in the north-eastern Kharkiv region during the outset of the war. Their legal defence has reportedly requested a more lenient sentence, claiming the soldiers acted under duress.

• A group of Ukrainian and international lawyers are preparing to launch a mass civil legal action against the Russian state and other parties who supported the Russian war effort. The suit will hope to gain financial compensation for Ukrainian victims of the war. The plan is to use multiple actions in different jurisdictions to seize Russian assets across the globe, including private military contractors such as the Wagner Group. The group will plead that Russia’s invasion is not just an aggressive war but also falls at least partially under the legal definition of terrorism. It is estimated the total potential claim could total around $1tn (£793.9bn).

• On Wednesday 1 June, at Westminster magistrates court, six people were prosecuted by the Metropolitan police for allegedly breaching Covid-19 restrictions during a vigil for Sarah Everard. The defendants reportedly attended a gathering of more than two people in an outdoor place when London was under tier 4 restrictions on 13 March 2021. The Met’s decision to prosecute follows a second refusal for permission to appeal against a High Court ruling which concluded that the force breached the rights of organisers of the same vigil. The decision means the force will be unable to further challenge the High Court ruling.

• David Beckham has been accused of hypocrisy for supporting footballer Jake Daniels, who recently came out, while still accepting around £10 million to be the face of the World Cup in Qatar, where homosexuality is illegal. The gay magazine Attitude condemned Beckham for agreeing to the deal after he gave his support to the Blackpool midfield Daniels, 17, who is the UK’s first male professional footballer to come out since Justin Fashanu in 1990.

• The UN commissioner Michelle Bachelet has come under fire following her six-day visit to the Xinjiang region of China. At a press conference on Saturday 29 May, she used Chinese propaganda terms to describe detention camps in the area as “vocational education and training centres”, and said she was “unable to assess the full scale” of such camps. Around two million Uighur people are thought to have been detained in these camps between 2017 and 2019. There have been calls from the spokesman for the World Uyghur Congress campaign group, Dilxat Raxit, for Bachelet’s resignation.

In other news:

• On June 1, judgement was handed down in the high-profile defamation trial involving Johnny Depp and Amber Heard. After a six-week trial and 13 hours of deliberation, the seven jurors in Fairfax, Virginia, delivered their verdict, ruling in favour of Depp, 58. He was was awarded $10.35 million following Heard’s description of herself as a domestic abuse victim in a 2018 newspaper. Heard had demanded $100m in a countersuit against Depp in response to Depp’s press agent’s comments that her “abuse hoax” aimed at capitalising on the #MeToo movement. She succeeded on only one count and was awarded $2m. She will reportedly appeal the result.

• Boris Johnson has been widely criticised for his recent redrafting of the ministerial code. It was formally set out that ministers who breached the code would not be automatically expected to resign but could apologise or forfeit some pay instead. His revisions also included rewriting the foreword to the code, removing references to honesty, integrity, transparency and accountability. This follows new reports of further illicit celebrations in Downing Street during lockdowns. Labour has called for an investigation into leaked text messages which suggest Johnson and his wife, Carrie, met two friends in their flat on the prime minister’s birthday, 19 June 2020, when indoor socialising was banned.

• A UK sperm donor with an incurable genetic condition has been banned from contacting his biological children after advertising his sperm to lesbians on social media. The family court judge Mrs Justice Lieven took the unusual step of naming James MacDougall in the hope that other vulnerable women researching sperm donors would input his name on the internet and be able to see the judgement.  

• The police watchdog has confirmed it is investigating the strip-search of another child by the Metropolitan police. The force is already under scrutiny following the strip-search of two teenage girls, known as Child Q and Olivia, in December 2020. Details of the cases prompted outrage and concerns that they had been treated differently because of their ethnicity. The watchdog declined to disclose the gender or race of the child currently in question but confirmed the strip-search had been conducted by officers of the same gender.

In the courts:

• On Monday, 31 May, the Court of Appeal dismissed an appeal in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767. The case hinged on the correct interpretation of Regulation 16(5)(c) of the Immigration Regulations 2016, which defines the circumstances in which a third country national who is the primary carer of a British Citizen has a derivative right to reside in the UK. The legal issue of the appeal arises in whether the Court deciding if the requirements of Regulation 16(5)(c) are fulfilled must consider a hypothetical assumption regarding the impact to the UK citizen dependant should the primary carer leave the UK. The Appellant, Mr Velaj was a national of Kosovo and entered the UK in 1998, where he was granted exceptional leave to remain. His wife and children are British citizens, but Mr Velaj was refused citizenship on account of his criminal record. Mr and Mrs Velaj are joint primary carers of their children. In 2016, following a conviction of smuggling cocaine and a custodial sentence of 12 years’ imprisonment, the Respondent made a deportation order against Mr Velaj. Mr Velaj appealed to the First-tier Tribunal, relying upon the recent decision of R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681, and the Zambrano jurisprudence established by Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265. His appeal was upheld on human rights grounds but set aside by the Upper Tribunal on 3 June 2021 for a material error of law. The Court upheld the decision of the Upper Tribunal, and highlighted that the judgement in R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681, given by Lord Justice Underhill, concluded that a Zambrano right is a right of last resort which does not arise if the third-country national carer otherwise enjoys a right under domestic law to reside in the member state in question. The Court, furthermore, viewed that, hypothetically, both primary carers would leave the UK should one be deported, and thus the UK dependant be unable to remain. However, the legal focus is on what in practice would happen to the child if the event of deportation occurred; in this case they would be able to remain. The Court thus dismissed the appeal as it was not persuaded that the Regulation in question compels a decision-maker to make a hypothetical assumption .

• The High Court handed down judgement on Monday 30 May in Balkwell, R (On the Application Of) v Essex Police [2022] EWHC 1288 (Admin). The Court dismissed the application for judicial review by the Claimant, Mr Leslie Balkwell. The review was brought regarding the Defendant’s decisions to close and not to re-open the criminal investigation into the death of the Claimant’s son, Mr Lee Balkwell in July 2002, whilst working for Upminster Concrete. An original CPS investigation in August 2002 was deemed seriously flawed by the IPCC. The Defendant admitted liability and paid damages following proceedings against him, commenced under section 7 of the Human Rights Act 1998, for breach of its investigative obligations under article 2 of the ECHR. The Claimant believes his son was murdered and there was fresh evidence which required a re-investigation into the case. The Defendant, however, had already conducted a thorough investigation, Operation Nereus (2010-2015), which resulted in a file being submitted to the CPS and the prosecution of Simon Bromley for the gross negligence manslaughter of Mr Balkwell. The Court thus upheld the Defendant’s argument that rationality had been observed in refusing to re-open the investigation. Although this decision was open to judicial review, such a review was required to meet the demanding Wednesbury test as established in  R (Corner House Research) v Director of the SFO [2008] UKHL 60; [2009] AC 756 at [30]. The Court maintained that, in this case, the fresh evidence presented by the Claimant did not overcome the high threshold for revising an article 2 investigative obligation and thus the application was denied.

• On Wednesday 1 June, the High Court granted an appeal against an Order for the extradition of the Appellant in Murawska v District Court Koszalin, Poland [2022] EWHC 1351 (Admin). The two primary Grounds of Appeal relied upon two sections of the Extradition Act 2003: (i) section 2, questioning whether the respondent was a valid “judicial authority”; and (ii) section 21, stating that extradition was not compatible with the Appellant’s rights under Articles 3 and 8 of the ECHR. The Court referenced Bank Mellat v HM Treasury (No 2) [2014] AC 700 and the principle of proportionality when determining whether interference with the Appellant’s Article 8 was necessary in a democratic society. The Order for the extradition was issued in light of a single conviction for six offences of theft with a total value of £337. There were 2 months and 13 days of the Appellant’s sentence remaining. The Appellant highlighted the Senior District Judge’s failure to properly account for factors such as age, the degree of seriousness of the offences and remaining sentence time as considerations in reaching decisions under Article 8 ECHR. The Court was persuaded that insufficient consideration which was given to the Appellant’s case under Article 8; the deliberation was not thorough enough to meet the standard indicated by Celinski v Polish Judicial Authority [2016] 1 WLR 551. The Court ruled it would be disproportionate to disrupt the Appellant’s life, and that of her partner, by extraditing her for what, at most, would be a very short time in prison in Poland.

Elsewhere on UKHRB:

• Rights & Security International and the New York City Bar Association are co-hosting an event on the retrogression of human rights protections in Northern Ireland. Here’s the link: https://www.eventbrite.co.uk/e/retrogression-of-human-rights-protections-in-northern-ireland-tickets-347922314007

• On Law Pod UK,  Episode 165: ‘A Duty To Offer Alternatives?’, John Whitting QC speaks to Emma-Louise Fenelon about informed consent.  
• The latest episode of Law Pod UK features retired Bailey Court Judge Wendy Jones QC, who discusses her book Unlawful Killings with Rosalind English