Weekly Round-up: judicial racism, Met misconduct, and a new PM

26 October 2022 by Lucy Stock

In the news:

• Rishi Sunak has formally been appointed the new UK prime minister, following Lizz Truss’ resignation on Thursday 20 October 2022. He is the youngest prime minister for more than 200 years and the first British-Asian prime minister.

• A report by Baroness Casey has revealed that claims against Met Police officers of sexual misconduct, misogyny, racism and homophobia have been badly mishandled. According to the report, 1,809 officers – or 20% of all those facing allegations – had more than one complaint raised against them: less than 1% of officers facing multiple allegations had been dismissed from the force. Met Police Commissioner Sir Mark Rowley says he is ‘appalled’ at the findings and the situation ‘cannot continue’.

• The University of Manchester has released a report which finds the judiciary in England and Wales to be ‘institutionally racist’. In a survey of almost 400 lawyers and judges, 95% said that racial bias played some role in outcomes in court and 29% said it played a ‘fundamental role’. The study also showed that judicial discrimination to be directed particularly towards black court users – from lawyers to witnesses to defendants. Since 2020, however, there has been only one published Judicial Conduct Investigations Office decision in which racism was found against a judge.

In other news:

• The CPS is facing outrage following the mishandling of a rape claim. Jade McCrossen-Nethercott’s case was dropped after the defence claimed that she suffered an episode of sexsomnia. The CPS ‘apologised unreservedly’ and acknowledged that the ‘account should have been challenged and put before a jury to decide’. The Centre for Women’s Justice has now taken up her case.

• A tender process for the Listening Project, announced earlier this year as a formal part of the Covid-19 inquiry, is to be awarded to one of 12 firms on a pre-approved government list. However, the Covid-19 Bereaved Families for Justice group has written to eight of the firms on the shortlist asking them to withdraw from the process in order to inspire confidence in the inquiry.

• MPs have voted in favour of nationwide ‘buffer zones’ outside abortion clinics in England and Wales. These zones prevent anti-abortion or other types of protesters from standing outside or near the vicinity of clinics or hospitals. The buffer zone would cover 150 metres from locations. Offenders could be hit with up to six months in prison for a first offence or as long as two years for repeated crimes.

In the courts:

• On 14 October, the High Court handed down judgement in AM, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 2591 (Admin). This was an application for judicial review of a section of the Immigration Rules: the Domestic Violence Indefinite Leave to Remain (“DVILR”). AM, a national of Pakistan, was a victim of domestic violence, culminating in transnational marriage abandonment (“TMA”); she was stranded in Pakistan and separated from her 2 year old British child for 8 months. The SSHD granted AM 30 months leave to remain and eventually ILR. The Defendant submitted the Claimant’s return to the UK rendered the case in question as academic and should thus be dismissed. The Court held only Grounds 1 and 2 out of five satisfied the tests set out in R v Secretary fo State for the Home Department ex p Salem [1999] 1 AC 450 for hearing a case which has become academic. They do not rely upon the specific facts of the case, rather challenge the Defendant’s failure to put in place an Immigration Rule to deal with the issue of TMA. The Court was not persuaded by the Defendant’s claim more time was needed to review the rules, nor that individual cases could be dealt with outside of the Rules. The Court held that the failure to make provision in the Immigration Rules for victims of TMA was in breach of Article 14 read with Article 8 of the European Convention on Human Rights (“ECHR”) under the Human Rights Act 1998.

• In Bernacki v The Regional Court In Slupsk, Poland [2022] EWHC 2630 (Admin) the High Court dismissed an appeal against the decision of District Judge Bouch to order the Appellant’s extradition to Poland, pursuant to a conviction European Arrest Warrant (“EAW”). Before the District Judge, the sole bar to extradition raised was article 8 of the European Convention on Human Rights. The Appellant had been in a relationship with MT for approximately 5 years; she had two children AK and OK. Reports of psychological distress resulting from the extradition order on the part of AK, MT and the Appellant were presented. An appeal on account of fresh evidence under Hungary v Fenyvesi [2009] EWHC 231 (Admin) was granted. The Court was not persuaded that this fresh evidence would have altered the decision of the District Judge. The Court held that the Appellant was a fugitive, his offending was recent and that his time left to serve, over 10 months, was significant. The Court held that the inevitable emotional hardship resulting from extradition was not of itself sufficient to prevent extradition from taking place, especially given the greater emotional and financial stability of MT, AK and OK since the District Judge’s initial judgement.

• The Court of Appeal dismissed the appeal in L3 v Secretary of State for the Home Department [2022] EWCA Civ 1357. The Appellant (‘A’) appealed a decision of the Special Immigration Appeals Commission (‘SIAC’), dismissing A’s application for a statutory review of the Secretary of State’s decision to exclude him from the United Kingdom. A is a Libyan national. His wife is a dual citizen of the UK and Libya; they have six children, who are dual British/Libyan citizens. He had limited leave to remain (‘LLTR’), until 2018. The Secretary of State’s decision dated 8 September 2017 (‘decision 1’) cancelled this and the family subsequently moved to Turkey. A was said to have held a leadership position in the Zintan Martyrs Brigade (‘ZMB’), a militia group active in Libya, and has admitted to having contact with people who later became extremists or terrorists. The Court held the guidance in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 was not decisive in the present context. The public interests to be weighed in the proportionality balance in ZH were the interests in firm immigration control and in the economic wellbeing of the country. The Court accepted the Appellant’s submission that SIAC applied the wrong test in its consideration of the Zambrano principle (Ruiz Zambrano v Office Nationale de l’Emploi (C-34/09) [2012] QB 886). The Court, however, found the SIAC would have struggled to apply the correct multifactorial test given lack of material. Furthermore, the error in law was immaterial. The Court held that even if the test established in Zambrano was met, the SIAC would have been bound to hold that any Zambrano right was outweighed by the interests of national security, applying the approach described in Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53.