The Weekly Round-up: Contempt of Parliament, ECHR no defence for criminal damage, and online safety

3 October 2022 by Matthew Johnson

In the news

The House of Commons privileges committee has issued its response to the legal opinion of Lord Pannick KC and Jason Pobjoy (on behalf of Boris Johnson) in respect of its inquiry into ‘partygate’. Pannick’s opinion criticised the committee’s proposed conduct by identifying 6 areas where a ‘fundamentally flawed approach’ has been adopted. The most substantial criticism was that the committee did not consider intent to be necessary in proving that Johnson misled the House. The weight behind this argument was that there would be a ‘chilling effect’ on Ministerial comments if unintentional mistakes were held to be contempt. In their response, the committee described this proposition as ‘wholly misplaced and itself misleading’. The response also says that the opinion is ‘founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law’. Questions have been raised as to both the method of publication of the opinion (which was not shown to the committee as is convention) and why the matter was not arranged by the government legal service.

The Home Office plans to re-open immigration detention centres as Suella Braverman indicates that she will take a harder line on immigration than Priti Patel, her predecessor. The plans are for 2 centres to open in order to detain 1,000 male asylum seekers, and to increase the number of people the Home Office can imprison. The plan is specifically linked to the detainment of people before they are sent to Rwanda, at a projected cost of £399m. The new contracts come after the former prison ombudsman, Stephen Shaw, published two comprehensive and highly critical reports on immigration detention, though officials stress they will take this into consideration.

In other news

• Anne Sacoolas, the US citizen accused of causing the death of Harry Dunn by driving on the wrong side of the road, has appeared via a video link at the Westminster magistrates court for the first time. After 3 years of waiting for criminal proceedings to begin due to extradition issues, the chief magistrate told Sacoolas that she must attend the next hearing at the Old Bailey in person.  

• TikTok could be fined £27m for failing to protect children’s privacy. The Information Commissioner’s Office found that the app may have processed the data of under 13s without parental consent. They also may have failed to provide proper information to its users in a concise, transparent and easily understood way, as well as processing special category data without legal grounds to do so.

• Ian Russell’s campaign, following his daughter Molly taking her own life due to negative online content, is having a major impact on the future of online safety. A cross-bench peer has stated that the efforts of the family have ‘made an unavoidable case for the online safety bill’, which proposes to place a duty of care on tech companies to shield children from harmful content.

In the courts

• In AG Ref No 1 of 2022, the Court of Appeal held that protestors in similar circumstances to the ‘Colston four’ cannot rely on human rights defences to charges of criminal damage. The ruling came after the attorney general referred a point of law following the acquittal of the Colston four, the protestors who toppled the statue of the slaver trader Edward Colston. The Lord Chief Justice handed down the judgment, which held that ‘prosecution and conviction for causing significant damage to property during protest would fall outside the protection of the Convention’ [at 115]. This principle was qualified with the caveat that Convention rights could be used in minor or temporary criminal damage cases, with proportionality being a central consideration [at 116]. As such, if criminal damage crosses the new threshold of ‘significant’, defendants will not be entitled to rely on an ECHR defence. Rosalind English will expand on the Court of Appeal’s judgment later this week.

• In Uhunamure v Belgium [2022] EWHC 2435 (Admin), the High Court discharged an extradition order against the claimant in respect of one offence, but kept the order in respect of 5 other offences. The order was in place to extradite the appellant to Belgium in order to stand trial for 6 offences related to human trafficking. Permission to appeal the order was granted on 2 grounds: (i) the first instance judge should have found that the warrant failed to include adequate particulars of the offences; and (ii) the judge was wrong to find that the offences were extradition offences. These grounds failed for 5 of the 6 offences. The only offence to which the order was discharged was for coercion into prostitution. Because the conduct occurred in Dubai, it had not met the dual criminality requirement for extradition [at 66].