The Weekly Round-up: the COVID-19 Inquiry, Crimes of Aggression in Ukraine, and UK Special Forces in Afghanistan
10 July 2023
In the news
On Thursday, the High Court dismissed a claim for judicial review brought by the Cabinet Office, regarding a notice issued by the Chair of the COVID-19 Inquiry which requested the disclosure of correspondence between former Prime Minister Boris Johnson and his senior advisers. The Cabinet Office argued the Inquiry Chair’s notice was unlawful because it required the disclosure of significant quantities of ‘unambiguously irrelevant’ material. It argued it should be allowed to redact obviously irrelevant detail from the documents, including from Mr Johnson’s WhatsApp messages. The Chair of the Inquiry, Baroness Hallett, maintained that s. 21 of the Inquiries Act 2005 empowered her to request and see unredacted materials which could be relevant to the investigation. The High Court agreed. It held that the disclosure of some irrelevant documents did not render the request for information unlawful. An enquiry of this nature must be able to ‘fish’ for documents; to make informed ‘but speculative requests for documents relevant to lines of inquiry, or documents which lead to new lines of inquiry’. The government has said it will not appeal the decision.
Meanwhile, the Ministry of Defence confirmed that the activities of UK Special Forces in Afghanistan will be addressed in the Afghanistan Inquiry, led by the Rt Hon Lord Justice Haddon-Cave. In a statement to Parliament, Secretary of State Ben Wallace confirmed the allegations being scrutinised by the Inquiry relate ‘to the conduct of UK Special Forces’. The Independent Inquiry relating to Afghanistan was commissioned in December 2022 to investigate matters arising from the deployment of British armed forces in Afghanistan between mid-2010 and 2013. Previously, the MOD maintained that the Inquiry should exclude any evidence relating to the UK Special Forces’ activities. At the first hearing for the Inquiry on Wednesday, Brian Altman KC (Counsel for the MOD) confirmed the Special Forces’ involvement but noted this admission was ‘made in, and confined to, the exceptional circumstances and particular context of this inquiry’.
The Illegal Migration Bill suffered a series of setbacks in the House of Lords this week. Notably, the Lords voted against plans by the Government to weaken pre-existing detention limits for children and pregnant women. The proposed Bill removed the three-day limit on how long children and pregnant women can be detained . Through a series of amendments, the Lords reinstated these controls. They also voted to include a provision which prevents LGBT people from being removed to a series of countries which are considered unsafe. Finally, the Archbishop of Canterbury – a vocal critic of the Bill – successfully moved to include a clause requiring the Secretary of State to prepare a ten-year strategy on refugee and human trafficking. These amendments will likely be overturned when the Bill returns to the House of Commons.
In other news
This week, the International Centre for the Prosecution of Crimes of Aggression against Ukraine (ICPA) started operations in the Hague. The purpose of the ICPA is to document and collect evidence of crimes of aggression committed in the Russian war against Ukraine. It is hoped this information will be used to support the prosecution of crimes of aggression in national courts or a specific tribunal, if one is established. The ICPA was established to ensure accountability for any potential crimes committed in Ukraine. Russia is not party to the Rome Statute, meaning that Russian officials cannot be prosecuted for crimes of aggression by the International Criminal Court (ICC). It is hoped the ICPA will help to fill any potential gaps in accountability by supporting prosecutions in different jurisdictions which would otherwise be beyond the scope of the ICC.
In Egypt, pre-trial hearings are increasingly being held remotely via video conference. These hearings are used to decide the extension of pre-trial detention periods. Human Rights Watch has expressed concern that moving these hearings online has the effect of increasing the isolation of Egyptian political prisoners, making it harder for detainees to flag abuses by the authorities. The organisation says the remote hearing system has exacerbated ‘longstanding abusive pretrial detention practices and flagrant due process violations’.
Meanwhile, in the Netherlands, the Dutch coalition government has collapsed following disagreement over domestic migration policies. There has long been disagreement amongst the members of the coalition over how to control domestic migration. These tensions erupted this week when the Prime Minister, Mr Rutte, tried to push a plan for legislation which would cap the number of relatives of refugees allowed into the Netherlands. These plans were heavily contested and eventually led to the split. Fresh elections are expected to be held later in the year.
In the Courts
In R (on the application of Officer W80) v Director General of the Independent Office for Police Conduct and others  UKSC 24 the Supreme Court decided the civil law test should be applied in disciplinary proceedings in relation to the use of force by a police officer acting in self-defence. The appellant in this case was a police officer who shot a man, Jermaine Baker, during a police operation. The issue before the Supreme Court was whether the appellant was liable for misconduct if his mistaken belief was honestly, but unreasonably, held. The case turned on the distinction between the civil law test (which focuses on whether the belief was unreasonable, or not) and the criminal law test (which looks at whether the belief was honestly held). Preferring the former, the Supreme Court held the objective civil law test was a more appropriate standard for the use of force by police officers.
In Tuleya v Poland (application nos. 21181/19 and 51751/20), the European Court of Human Rights found that disciplinary inquiries initiated against the claimant, a senior judge in Poland, had violated Articles 6 (right to a fair trial), 8 (right to respect for private life) and 10 (freedom of expression). As part of the disciplinary proceedings, the claimant was stripped of his judicial immunity from prosecution and suspended from his role for two years. The Court found, as in other similar cases, the Disciplinary Chamber of the Supreme Court in Poland (responsible for these inquiries into the Polish judiciary) was neither independent nor impartial. As such, the decision to suspend the claimant’s immunity had violated Article 6. The Court also held that lifting the claimant’s immunity was effectively a disguised sanction, intended to punish the claimant for criticising the program of judicial reform in Poland. This constituted a clear violation of the claimant’s freedom of expression, for which he was awarded damages.