The Weekly Round-up: indefinite CBA strikes, Truss considers Article 16, and Spanish consent laws

29 August 2022 by Matthew Johnson

In the news:

Members of the Criminal Bar Association have voted in favour of an indefinite strike, escalating the industrial action that the courts have witnessed since June. The decision follows failed negotiations with the Ministry of Justice, with Dominic Raab still having not met with the CBA and the government standing firm in its position. The MoJ have expressed their disapproval of the decision, labelling it ‘irresponsible’. The CBA, alternatively, have accused the government of overseeing a ‘recklessly underfunded’ criminal justice system. In response to the decision, Raab has proposed granting more solicitors rights of audience, allowing more to advocate in the Crown court. The strike is due to commence on 5 September, coinciding with the announcement of the new Conservative party leader.  

Liz Truss has expressed that she will consider triggering Article 16 of the Northern Ireland Protocol if she were to be successful in her leadership campaign. Article 16 provides ‘safeguarding measures’ that entitle the UK or the EU to suspend any part of the agreement. It does not, however, dismantle the Protocol in its entirety.  Rather, triggering the article would provide an alternative to other suggestions which propose primary legislation to deem it necessary that the Government not comply with its existing obligations under the agreement. Triggering the article would exhaust the legal options the UK has before following through on this threat to discard the agreement altogether. The news comes after the EU launched a series of legal challenges against the UK’s commitment to the Protocol.

In other news

• The Bar Standards Board have found that there is little evidence of discrimination and harassment on Bar training courses. While the majority of students felt that courses had a diverse group of students from the UK and overseas, the study found that more could be done to integrate student populations. More information could also be provided on how courses monitor gender pay gaps among staff.

• Spain have passed legislation that means consent cannot be assumed by default or silence. Under the new law, which has been termed the ‘only yes means yes law’, consent must be affirmative. The equality minister stated that ‘it is a victorious day after many years of struggle.’

• The Metropolitan police is taking a former senior officer to court, claiming her allegations of racism and sexism broke an agreement which designed to stop her speaking out. The Met are claiming £60,000 plus interest after Parm Sandhu purportedly broke an NDA when she discussed the discrimination she faced within the police.

In the courts:

• In Nodea v Judecatoria Oradea Romania [2022] EWHC 2217 (Admin), the High Court dismissed an appeal against an extradition order to Romania. The extradition had been made in respect of 6 offences of which the appellant had been convicted. The appeal centred on the fact that Romania has regard to the issue of totality when it sentences for more than one offence at a time. This means it applies a formula which determines the most serious sentence appropriate and adding it to one third of the combined appropriate sentences for all other offences. This results in a single sentence being imposed for the totality of the offender’s criminality, and not a series of individual offences as in the UK. The difficulty is that the appellant was only extradited for some of their offences, and this formula cannot, it was submitted, accommodate this. However, the court found that the state had made proper provision to ensure the principle of speciality had been enacted into its laws, and the appellant did not discharge the heavy burden of disproving this.  

• In HSK v Crown Prosecution Service [2022] EWHC 2213 (Admin), the High Court allowed an appeal against a conviction of a racially aggravated offence. The appellant pleaded guilty to unlawfully and maliciously wounding contrary to section 20 of the Offence Against the Person Act. It was held that the Youth Courts were not entitled to convict the appellant of the racially aggravated offence simply on the basis that he was part of a group which attacked on a racially motivated basis. It had to be the appellant himself who was racially motivated. This could also have been satisfied if all of the group shared that motivation. On the present facts, only one member of the group, who was not identified, had used racially charged language, which was insufficient.

Elsewhere on the UKHRB:

• Natalie Nguyen analyses local authority age assessments considered in R (HAM) v Brent LBC. Find it here.