The Weekly Round-up: Elizabeth II’s state funeral, section 28 roll-out, and facial recognition technology
20 September 2022
In the news
- On Thursday 8 September, Queen Elizabeth II, the UK’s longest-serving monarch, died peacefully at Balmoral aged 96. She is succeeded by her son, King Charles III. He described the death of his mother as a ‘moment of great sadness’ for him and his family, and that her loss would be ‘deeply felt’ around the world. Her state funeral this Monday was watched by around 4 billion people worldwide, and more than a million people lined the streets of London to pay tribute.
- On Friday 17 September, the measure known as section 28 was extended to five more crown courts, taking the total number to 63. The policy allows complainants of offences including modern slavery to be cross-examined before trial in front of a limited number of people. Although many barristers support the principle of the policy, some have stated there are insufficient resources for the scheme, particularly in the light of the indefinite walkout over legal aid fees. Many advocates refused to do section 28 cases pre-strike given the amount of extra unpaid work required.
- The quarter-of-a-billion-pound IT project rolled out by the Ministry of Justice to increase the efficiency of sharing information between courts, lawyers and police has come under criticism. The Common Platform software system has been accused of putting the justice system ‘at risk’. It is reported the system has been resulting in difficulties for lawyers, unlawful detentions, and wrongful arrests. Whistle-blowers have called the system ‘faulty, unsafe and unfinished’.
In other news
- Orthopaedic surgeon Shyam Kumar who was sacked for raising patient safety concerns has won his unfair dismissal case against the Care Quality Commission (CQC). He had reported concerns regarding inadequate hospital inspections, staff bullying and serious patient harm. A Manchester Employment Tribunal’s judgement confirmed that the safety issues Mr Kumar raised played a significant role in his dismissal.
- Fourteen campaign groups, including Big Brother Watch, Liberty and Black Lives Matters UK, have written an open letter to Metropolitan Policy Commissioner Sir Mark Rowley calling for an end to the use of facial recognition technology. The groups claim that 87% of the alerts generated by these systems are misidentifications and that ‘millions of Londoners’ faces have been scanned by facial recognition cameras without their consent’. The force, however, states that, of the proportion of all people estimated to have walked past cameras, the percentage of misidentification is actually between 0% and 0.08%.
- The Christian campaign group Christian Concern is taking legal action against Fitzwilliam College of Cambridge University after their event booking was rejected. The group claims the college ‘directly discriminated’ against it by refusing them permission to host a conference for young Christians. At a preliminary hearing on Thursday 16 September, Yaaser Vanderman, representing Fitzwilliam College, told Judge Sir Ross Cranston that research into Christian Concern by staff, had given rise to ‘concerns about the reaction of the college’s students if the booking was accepted’.
In the courts
- On 9 September, the Court of Appeal ruled that the High Court had erred in refusing an adjournment in A (A Child : Withdrawal of Treatment: Legal Representation)  EWCA Civ 1221. The adjournment was sought by parents of a brain-damaged baby, A, after they lost their legal representation shortly before a hearing concerning withdrawing treatment. The appellants appealed the decision of Honourable Mr Justice Hayden on the ground that the refusal to adjourn breached their right to a fair trial, protected by Article 6 ECHR. The court held that Article 6 was not the primary legal issue at hand, referring to R (Osborn) v Parole Board  UKSC 61, in which the Supreme Court asserted that the Human Rights Act 1998 should not normally supersede the protection of human rights under the common law or statute. The court thus instead applied the common law principles of fairness, balancing the severity of the child’s condition and the factors in favour of an adjournment, including the gravity of the issue, the immense task of self-representation for the parents and their loss of legal representation through no fault of their own. In the circumstances, the court concluded that the judge’s decision to refuse the adjournment was unfair and thus must be set aside.
- On Monday 12 September, the High Court dismissed an appeal in Marinescu & Ors v Judecatoria Neamt, Romania & Anor  EWHC 2317 (Admin), concerning an extradition to Romania pursuant to a European Arrest Warrant. The three appellants each contended that their return to Romania would risk violating their rights under Article 3 ECHR, relying upon the requirement for the provision of 3 sqm of personal space for detainees established in Mursic v Croatia  ECHR 927. Following the ruling in Rezmives and others v Romania, Romania, although a member of the Council of Europe, has lost the benefit of the presumption that it will comply with its Article 3 obligations. The court, however, was not convinced by the appellants’ submission that previous violations of Article 3 rights in European Court of Human Rights judgments provided ‘categorical evidence that conditions at the relevant prisons fall below irreducible standards’. The court instead held that the assurances of which were provided by the respondent satisfied the necessary criteria set out in Sunca v Iasi Court of Law  EWHC 2786 (Admin) and the District Judges had been right to accept them as sufficient.
- The First-tier Tribunal of the General Regulatory Chamber dismissed an appeal in Greenwood v The Information Commissioner & Anor  UKFTT 333 (GRC) brought under section 57 of the Freedom of Information Act 2000. The appeal concerned the decision of the Information Commissioner to support the withholding of information by the Department of Health and Social Care (DHSC) under section 43(2) (commercial interests) of FOIA: the 446 companies that were processed through the high-priority lane for PPE procurement in March 2020 and were unsuccessful in their bids. The appellant, relying upon Good Law Project Limited v The Secretary of State for Health  EWHC 46 (TCC), submitted that there was evidence to indicate that in some cases offers provided to the high-priority lane were treated with ‘undue priority’, and the companies were able to lobby Government ministers. The court found that there was insufficient evidence to persuade them that on balance it was in the public interest to disclose the withheld information, particularly following evidence that disclosure would or would be likely to adversely affect these companies’ commercial interests. It was also of note that the information of the successful bidders had already been disclosed following an internal investigation. The court found that the Commissioner had erred on neither law nor fact, and had been correct in exercising their discretion in this matter.