Monthly News Archives: June 2023

Unpublished policy and unlawful detention: a case note on R (MXK) v Secretary of State for the Home Department

29 June 2023 by Lance Baynham

In R (MXK) v Secretary of State for the Home Department [2023] EWHC 1272 (Admin), the Administrative Court held that:

1. the repeated detention of the claimants – foreign nationals with limited leave to remain – when they returned to the UK from travelling abroad, so that they could be questioned about their NHS debts, was unlawful;
2. the policy pursuant to which the claimants were detained (the “Policy”) was unlawful because it contained a positive statement of law which was wrong or, alternatively, because it failed to provide a full account of the legal position;
3. the Policy was unlawful because it was unpublished; and
4. the Secretary of State for the Home Department (“SSHD”) was in breach of the public sector equality duty (“PSED”) under s.149 of the Equality Act 2010.

In reality, the facts carried the day. This was true not only in relation to the unlawful detention issue, but also on some other points – for example, the SSHD failed to evidence any public interest in not publishing the Policy or any consideration given to the equality impacts of the exercise of the relevant powers of detention. Insofar as there are lessons to be learned, they are likely to be found in the criticisms levelled at the evidence (or lack thereof) provided by the SSHD.

The Supreme Court provides authoritative guidance on the application of Article 2 to Coronial investigations and inquests

28 June 2023 by Peter Skelton KC

Introduction

The advent of the Human Rights Act 1998, and the incorporation into domestic law of the Article 2 right to life, has transformed coronial investigations and inquests over the last two decades. Lord Bingham’s magisterial creation of the ‘enhanced’ investigation and conclusion in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 (later adopted by Parliament) gave coroners greater responsibility to hold the state to account for deaths. That, in turn, has significantly improved the ways in which all inquests are conducted, not just those where Article 2 is found to be engaged. Inquests are no longer haphazard affairs. They are (ordinarily) carefully planned and structured processes; and their participants, the ‘interested persons’, are far more involved in assisting coroners with the task of identifying the proper scope of their investigations and the lawful ambit of their conclusions.

Article 2, then, has already conquered and occupied the terrain of the coroners’ courts and it is only at the frontiers of its application that legal skirmishes still occur. One such fight is the case of R (Maguire) v HM Senior Coroner for Blackpool & Fylde and another [2023] UKSC 20, which was argued before the Supreme Court on 22^nd and 23^rd November 2022, and in which judgment was given on 21^st June 2023.

The central issue in the case was whether Article 2 required an enhanced inquest into the death of highly vulnerable woman, Jackie Maguire, who had become seriously unwell while in a private residential care home and had later died in hospital. The Supreme Court held unanimously that it did not. More importantly, in doing so, it took the opportunity to provide a detailed and authoritative account of how Article 2 applies to coronial investigations and inquests. 

The Weekly Round-Up: Greek Migrant Boat Tragedy, Italian pushback against Surrogacy, and Downstream Emissions in the Supreme Court

26 June 2023 by Orry Moore

In the news

Further details of the sinking of a Greek fishing boat carrying up to 800 people – including up to 100 children – have come out, placing the Greek authorities under intense scrutiny. The tragedy, which occurred on Wednesday 14^th June, has seen the confirmed deaths of at least 78 people and only 104 confirmed survivors – with no women or children surviving. The Greek authorities have so far claimed that the boat had no issues navigating until close to the time when it began to sink and that the people onboard had refused help from the Greek coastguard. However, marine tracking evidence obtained by the BBC suggests that the overcrowded fishing vessel was not moving for at least seven hours before it capsized. This has raised questions over the actions of the Greek coastguard, prompting the UN to call for an investigation into Greece’s handling of the situation amid claims more action should have been taken earlier to initiate a full-scale rescue attempt. Up to 500 people are still unaccounted for. In slightly more positive news, nine of the people traffickers involved in the disaster have been apprehended by Greek police and pled not guilty in a Kalamata court to trafficking charges.

The Italian prosecutor for Padua, Valeria Sanzari, has demanded the cancellation of 33 birth certificates of children born to lesbian couples dating back to 2017, saying the name of the non-biological mother should be removed. The mother whose name is eliminated will no longer be able to fulfil a series of tasks, including picking up her child from school without the written permission of her partner. If the legally recognised parent dies, the children could be taken from the family home and become a ward of the state. This comes against the backdrop of the election of Meloni’s right-wing government and a debate in Italy’s lower house on a new law that would make it a crime, punishable by up to two years in jail, for couples who go abroad to have a surrogate baby, even in places where it is legal. Critics of the move, such as Italian parliamentarian Alessandro Zan, have called the proposal “cruel [and] inhumane”, saying it will result in children being “orphaned by decree”.

Non-Fungible Tokens: Blockchain Technology and the Legal Framework

21 June 2023 by Rosalind English

In the latest episode of Law Pod UK, Robert Kellar KC discusses the developing law on NFTs with Victoria Walters, library learning advisor at the Bristol campus of the University of Law. We are grateful to Victoria and the University for the permission to repost this interview.

As Robert explains, the “token” is a crypto token that exists on a decentralised network, or a blockchain. The tokens are minted using blockchain technology, and can be transferred and traded. As for “non-fungible” – something that is fungible is interchangeable with other things, like money. Something is non-fungible is unique, like a piece of art.

Hear more about this interesting marketplace involving exchanges of considerable value by listening to Episode 186 of Law Pod UK.

Plus: we want your feedback! Please take a couple of minutes to fill in this very short anonymous survey. Thank you in advance. www.surveymonkey.co.uk/r/LawPodUK

The Weekly Round-up: Covid Inquiry, Abortion law, Sue Carr as Lord Chief Justice

19 June 2023 by Hal McNulty

In the news:

The inquiry into the government’s handling of Covid has begun hearing evidence in public. The first topic of discussion, Chair Baroness Hallett’s Module 1, is pandemic preparedness. Hugo Keith KC, Lead Counsel to the Inquiry, told the hearing that the impact of lockdowns on society had not been planned for, while arrangements for a no-deal Brexit had ‘drained resources and capacity’ in Whitehall. Subjects which reportedly had not been considered include the impact on education and employment support. Lady Hallett said three central questions need to be answered by the probe: Was the UK properly prepared for a pandemic? Was the response appropriate? And what can we learn for the future? Those invited to give evidence include David Cameron and George Osbourne, who will speak to the effects of public sector cuts on pandemic preparedness.

A mother-of-three has been imprisoned for over two years for inducing her abortion after the 24-week limit. Carla Foster ordered medication under the Lockdown ‘pills by post’ scheme, having lied that her pregnancy was within the 10-week category that would qualify for her for at-home abortion treatment. The prosecution argued that Foster’s online searches, which included the request ‘how to lose a baby at six months,’ indicated comprehensive premeditation. The judge recognised the defendant’s sense of remorse, her depression and that three children, one of whom has special needs, depended on her, but regretted that a guilty plea had not come earlier and passed a sentence of 28-months (including 14 to be spent on licence). A number of women’s organisations signed a letter imploring the judge to pass a lenient sentence, while Labour MP Stella Creasy has called for a reform to the law. Some commentators have argued the sentence may discourage other women who miscarry from seeking medical help and that custodial sentences in these cases are of no benefit to the public.

A common law duty of care to issue an Osman warning?

12 June 2023 by Conor Monighan

‘There may be exceptional cases where the circumstances compel the conclusion that the absence of a remedy sounding in damages would be an affront to the principles which underlie the common law. Then the decision in Hill’s case should not stand in the way of granting an appropriate remedy.’ Per Lord Nicholls in Brooks v The Commissioner of Police [2005] UKHL 24.

What such an exceptional case might look like has remained a matter of speculation. Until now. On 9 May Ritchie J handed down judgment in Woodcock v Chief Constable of Northamptonshire [2023] EWHC 1062 (KB), which, if it remains good law, is likely to have a significant impact upon the law concerning the liability of the police in the tort of negligence.

In Woodcock, the High Court found that the police were under a positive common law duty to warn the Claimant of a potential danger. It found the police had assumed responsibility towards the Claimant by advising her to set up a ‘protective ring’ around her property and, in the alternative, that this was a rare ‘special / exceptional’ case in which there was a positive duty to warn. The court also overturned the trial judge’s decision on causation, saying that although the learned judge’s findings on this point were not ‘wrong’ they were ‘unjust’.

Given the nature of the court’s conclusions, it is likely the case will be appealed to the Court of Appeal.

Facts

The Claimant had been in an abusive and coercive relationship with RG [61]. The trial judge found that, due to an increase in the number and seriousness of threats, the Chief Constable agreed officers would stay in a police car outside the Claimant’s home during the night of 19 March 2015 (albeit for an indefinite period depending on other policing needs) [79].

Officers also agreed a safety plan with the Claimant which included advice that the Claimant should call the police if RG attended her property and that she should make neighbours aware of the issue [80]. The Defendant also unsuccessfully ‘deployed a substantial group of officers to locate and arrest RG’ [82].

At 7:32am on 19 March 2015 a neighbour called 999 and said RG was outside the Claimant’s property, the Claimant would be leaving in a few minutes and RG was probably planning an attack [84]. Officers were dispatched to the Claimant’s address. However, neither the neighbour nor the call handler rang the Claimant to warn her of the danger.

The Claimant subsequently left her house. RG stabbed her with a large knife 7 times and was subsequently convicted of attempted murder [89; 5].

Torture, Restraint of Children in Care, and LGBTQ+ Rights in Uganda: The Weekly Round-Up

8 June 2023 by Anna Moody

In the news 

The UK’s role in the torture of detainees following the 9/11 attacks, is in question. Last week, the investigatory powers tribunal announced that, on grounds of public interest, they will examine complaints “of the gravest possible kind” which were brought by Mustafa al-Hawsawi against the UK’s intelligence services. Al-Hawsawi was detained in secret CIA prisons and tortured between 2003 and 2006, having been accused of aiding the September 11 attacks. It is alleged that in this time, UK intelligence “aided, abetted, encouraged, facilitated, procured and/or conspired” with the US in Al-Hawsawi’s torture. A related issue concerning the conduct of the CIA is also being heard by the Supreme Court in the case of Zubaydah v Foreign and Commonwealth Office and others next week.