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Strange are the ways in which AI can escape and do harm; equally strange are the curious mechanisms whereby water can escape and do harm.
Water
Let’s start in the 19th century with water, and one of the most famous cases of all time, Rylands v. Fletcher. Fletcher owned a mine, Rylands (of The John Rylands Library fame) a local cotton mill for which he needed water from a reservoir (for steam). The reservoir was excavated, and during the excavation five blocked vertical mineshafts were found in the bed of the reservoir. But two things were not known, namely that these vertical shafts had not been filled in very well, and also that they joined with lateral shafts leading to Fletcher’s mine (of which they had originally formed a part). After two separate escapes of water into the colliery in 1860 and 1861, the inspector of mines thought enough was enough, warned off Fletcher, who closed his mine down.
Fletcher sued Rylands, and won in the House of Lords, seven years after issue of his claim and a tortuous process through the courts. Liability was ultimately declared to be strict; Rylands did not have to know or be aware of the interconnections between his reservoir and Fletcher’s mine. For historical, technical and legal detail, see Professor A.W.B. Simpson in his superb article in the Journal of Legal Studies (vol.xiii, 1984, p.209). In short, there had been in recent memory two catastrophic reservoir bursts (78 dead in 1853, and 238 dead in the 1864 Dale Dyke breach shown in the contemporary image above), both involving municipal water supplies. The judicial atmosphere would have been such that it would be like deciding a new point of tort law about industrial explosions in the immediate aftermath of the Buncefield catastrophe in 2005. And yet the Rylands reservoir was a modest private enterprise, of such a volume that it would not even be regulated these days under reservoirs legislation. It exists, and Professor Simpson tells us that it was still leaking when he saw it.
As later cases such as Cambridge Water v. Eastern Counties Leather have clarified, liability is not that strict. Foreseeability of the relevant type of harm is necessary, but not of the mechanism by which it occurred. Lord Blackburn put it thus
“We think that the true rule of law is, that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape” (1866) L.R. 1 Ex.265, 279, Court of Exchequer Chamber.
In recent times, Rylands has become sidelined into a sub-category of private nuisance applicable to isolated escapes from land, rather than a broad authority for strict liability in tort. But it had its moment, albeit being out of synch with similar tort cases before and after it.
Escaping AI
Now to escapes of AI, and what happens when something wriggles out of its sandbox. Sandboxes are meant to keep developmental AI in. So, spool on 160 years. On 16 July 2026, an AI platform called Hugging Face told US law enforcement that an attacker had used an AI agent to breach its systems. But no human had been involved. Two OpenAI models (one released, one under development) had got out of their development sandbox and hacked Hugging Face.
More precisely, a sandbox for AI is an isolated computer environment with no internet access, except for an internal system designed to send in enough software to do no more that test the models. Its purpose is to insulate the AI models from the rest of the world. But these mischievous OpenAI models (i) exploited an unknown vulnerability in the intro/exit software, (ii) reasoned via the internet, to which they now had access, that the solutions for the problems they had been set was to be found at Hugging Face, and (iii) duly hacked it to get its answers, sending in a dataset which enabled the models to harvest login details and access internal servers. See, for the short version, Outside the Box , The Economist, July 25, 2026, p.73, for a longer an independent report by METR (of 26 August 2026) commissioned by OpenAI. The METR report contains a helpful graphic, suggesting that at its height the attack on Hugging Face involved 1200 AI agents working together via a shared message board which the agents had created.
This is just one of a series of recent episodes involving rogue agents which has been causing embarrassment to OpenAI and Anthropic, in particular.
Where would liabilities lie for these kinds of events? This question raises a whole host of problems, much chewed over the last few years. Is the AI agent (by it or its team) an agent in law of its owner? Is the owner vicariously liable for it? Is it potentially a case for strict liability? And, back to Rylands, is foreseeability of the relevant type of harm which occurred enough, or does the owner need such foreseeability of the mechanism of harm?
First, let us have a look at the position under English law – assuming that our claimant is a domestic Hugging Face and our defendant a domestic OpenAI. The starting point may be thought to be the law of negligence. On these facts, OpenAI may not have been negligent if the vulnerability in its own software was not reasonably evident to it – compare Fletcher’s lateral mine workings of which Rylands was unaware. Its case appears to be that OpenAI underestimated the cyber capabilities of its own models – which is slightly troubling as those models will doubtless get cleverer. Similarly, it might be said that the escape of the mischievous AI models in league to wreak havoc on Hugging Face may not have been foreseeable. But in each case, the resultant brouhaha may have made subsequent escapes negligent or foreseeable; Anthropic and OpenAI will know a good deal more about its agents’ capabilities than it did a few months ago.
In addition, there may be claims in trespass to goods (if the models interfered with Hugging Face’s property and information storage) and potentially, the accessing and/or disseminating of personal data from the victim’s systems, for misuse of private information. See e.g. the recent case of Al-Masarir v. Saudi Arabia [2026] EWHC 119 (KB) where Saudi Arabia was found liable in trespass to goods for deliberately infecting with Pegasus spyware mobile phones belonging to a vocal YouTube critic of the Saudi regime. There are no current cases on an unintentional act getting into a victim’s database which would otherwise amount to a trespass.
If needed, might there be room for a broader strict liability, with the courts fashioning a modified cause of action to plug what they perceived to be a gap in legal protection? An escaped AI agent capable of conspiring with other rogue agents is certainly something “likely to do mischief if it escapes”, in Lord Blackburn’s terms. In favour of this is the black box nature of AI, and hence the inability without more for a claimant to prove what went wrong and whether it amounts to negligence. Is a new regime is needed? I can see the case for it, but I think that this is unlikely. Most of the reported incidents are capable of giving rise to a claim in negligence, in which case judicial creativity will not be called upon, and the tort of trespass to goods, as and when tested, may fill in the gaps.
There is a qualified strict liability for products under the UK Consumer Protection Act 1987, but in this Act the definition of products does not include software, and it only benefits consumers, not businesses. But the UK CPA, deriving from EU legislation, is coming under UK Law Commission scrutiny, and one of the objects of their scrutiny may be this software point, as well as the EU’s post-Brexit revised Consumer Protection Directive (2024/3853). This EU Directive, still only applicable to consumers, does cover software, indeed any form of AI placed on the market or put into service after 9 December 2026. It also tries to mitigate the difficulties of proof in favour of a claimant by two provisions; Art.9, which requires a defendant to a plausible claim to disclose relevant evidence, and Art.10, which enables a presumption of proof if the defendants fails to disclose or the damage was caused by an obvious malfunction of the product. A Commission proposal (COM(2022) 496, to apply similar rules to all AI harm, not just that suffered by consumers, ran into institutional sand and was withdrawn in 2025.
But a claimant would still have to prove “defectiveness” under s.3 CPA or its equivalent in Art.7 of the new EU CPD. This is not a straightforward test for a claimant as it brings in some of the elements relevant to a claim in negligence. Which is why I described the CPA/CPD regime as qualified strict liability.
For a more detailed account of civil liabilities for AI, listen to LawPod UK’s Episode 236 on the UK Jurisdiction Taskforce draft Legal Statement on AI, or read the Final Version of that Legal Statement here.
AI general regulation
The EU is on the move in terms of AI general regulation. There is its all-encompassing Regulation 2024/1689, covering the placing on the market, putting into service, and the use of AI. Most of the Directive applied from 2 August 2026. The Regulation is enormously detailed (144 pp) but the provisions of Art. 57 caught my eye, given the sandboxes which feature above. Member States shall establish at least one AI regulatory sandbox each, to support innovation. This are principally for use in testing high-risk AI systems (no reason to have such a sandbox for a low-risk AI), but these high-risk AI systems may be tested by the developer outside those sandboxes but only after a host of onerous conditions (Art.60) are satisfied.
The UK has no specific regulatory system for AI. It relies on existing laws and regulation, including the Information Commissioner’s Office, Financial Conduct Authority and Ofcom. Forthcoming legislation was mentioned in the 2024 King’s Speech, but it has not emerged. Perhaps it will amend the CPA in line with the EU current Directive. But it may continue without an overarching regulatory structure.
Secretary of State for the Home Department v Hirtie [2026] EWCA Civ 1000, handed down by the Court of Appeal on 30 July 2026, is a deportation appeal that turns less on the substance of Article 8 than on procedural discipline: whether a party who unequivocally withdraws a ground of appeal before the Upper Tribunal (”UT”) can resurrect it before the Court of Appeal. The Court’s answer, delivered by Stuart-Smith LJ, was a firm no, reinforcing a growing body of authority requiring parties to identify and narrow the issues in dispute at the earliest opportunity.
Background
Mr Hirtie, a Romanian national, was convicted of section 18 wounding with intent (the most serious form of assault) and sentenced to 39 months’ imprisonment, making him a “foreign criminal” under section 32 of the UK Borders Act 2007 and liable to automatic deportation.
The Secretary of State (”SSHD”) rejected his human rights claim in September 2023, finding that neither exception to deportation under section 117C of the Nationality, Immigration and Asylum Act 2002 applied and that there were no “very compelling circumstances” outweighing the public interest in removal.
The decision letter was structured throughout on the assumption that Mr Hirtie’s partner and children would remain in the United Kingdom following his deportation — the “stay” scenario. As Hirtie records at §13: “The structure of the SSHD’s reasoning is clear beyond argument: the possibility of Mr Hirtie’s partner and children going to live in Romania was simply not in issue.”
The route through the tribunals
Mr Hirtie’s skeleton argument before the First-tier Tribunal (“FtT”) expressly identified the “go” scenario as a matter not in dispute, and the SSHD never contradicted this. The FtT allowed the appeal, finding that separation from Mr Hirtie would have a “profound” impact on his partner — going “beyond undue hardship” — given her traumatic history of losing her parents young and being raised in an orphanage, and that this amounted to “very compelling circumstances” under section 117C(6).
On appeal to the UT, the SSHD raised the “go” scenario for the first time as Ground 1, drafted in terms the presiding judge, UTJ O’Callaghan, considered misleading. Hirtie records at §31: “The end result was that the Senior Presenting Officer who was appearing for the SSHD agreed that Ground 1 … should be withdrawn. The withdrawal was unequivocal, albeit in the face of a heavy judicial headwind.” The UT went on to reject the SSHD’s remaining ground and upheld the FtT’s decision.
Reviving a withdrawn ground
Before the Court of Appeal, the SSHD sought to resurrect the “go” scenario, arguing that section 117A(2)(b) of the 2002 Act obliged the tribunal to consider it regardless of whether either party had raised it. Warby LJ, granting permission, deliberately left open whether a party could revive an argument withdrawn below.
Stuart-Smith LJ rejected the attempt at §52: “She had been properly represented before the UT and was not forced to withdraw the ground. No good reason was offered for resurrecting it on appeal.”
Applying Singh v Dass [2019] EWCA Civ 360, decided 7 March 2019, the Court set out the governing test for admitting a new point on appeal. Haddon-Cave LJ held at §16-17 of that case: “An appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court… An appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial.”
Applying this in Hirtie, the Court held at §53 that admitting the “go” scenario would require fresh evidence about relocation difficulties, that the FtT hearing would have unfolded differently had the issue been live, and that this was not a pure point of law the Court of Appeal could resolve without remittal.
The deeper procedural principle
More fundamentally, the Court held that allowing the SSHD to raise the “go” scenario now would conflict with the case-management philosophy established in Lata (FtT: Principal Controversial Issues) [2023] UKUT 163 (IAC), decided 23 June 2023, and endorsed by the Court of Appeal in AL v Secretary of State for the Home Department [2026] EWCA Civ 370, handed down 31 March 2026.
Lata’s headnote states at point 4: “It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon.”
In AL, Elisabeth Laing LJ endorsed this approach, explaining at §78 that upon proper engagement with the appeal skeleton process “a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.” She further held, applying the narrow Robinson-obvious exception (from R (Robinson) v Secretary of State for the Home Department [1998] QB 929), that a decision cannot be criticised for failing to address an issue neither party raised, unless it was “a point which has strong prospects of success if it is argued. Nothing less will do” (Robinson at 946B-D, cited in AL at §68).
Hirtie held at §54-55 that the SSHD was not exempt from this obligation. Having omitted any reasoned discussion of relocation difficulties from the decision letter, and having failed to challenge Mr Hirtie’s skeleton assertion that the “go” scenario was not in dispute, her silence was, per Stuart-Smith LJ, “consistent with the issue not forming part of her decision-making process and not being in dispute between the parties.”
The “very compelling circumstances” ground
The SSHD’s second ground argued that the FtT’s finding of “very compelling circumstances” was legally flawed, inadequately reasoned, and perverse — partly because the judge did not expressly cite section 117C, and partly for want of expert medical evidence about the partner’s mental health.
The Court disagreed. At §62-63, Stuart-Smith LJ held that although the FtT judge did not set out section 117C verbatim, he plainly understood and applied the correct “very high bar,” relying on Ali v Secretary of State for the Home Department [2016] UKSC 60, decided 16 November 2016 (also cited as Hesham Ali), for the proposition that the public interest in deporting foreign criminals must be accorded very significant weight. The absence of a concluding checklist recapping the relevant factors was immaterial (§64).
On perversity, the FtT judge had found the partner and Mr Hirtie’s brother “honest and credible” witnesses giving “sincere and heartfelt evidence” (§66-67), and the Court held that FtT judges are entitled to make findings about the psychological impact of separation on the basis of accepted witness evidence alone, without corroborating expert medical evidence. The judge’s conclusion, reached “by a narrow margin,” was nonetheless sufficient to withstand appellate scrutiny (§68).
Comment
Hirtie offers several practical lessons for immigration and public law practitioners handling deportation and Article 8 appeals:
Withdrawal is generally final. A party that unequivocally withdraws a ground before the UT, while properly represented and without compulsion, should not expect the Court of Appeal to allow its resurrection absent compelling justification (Hirtie at §52).
Case-management discipline applies to the Secretary of State too.Lata and AL are not confined to appellants; the SSHD is equally bound to identify and narrow issues at the earliest stage (Hirtie at §55).
Silence has consequences. Failing to engage with an opponent’s stated “matters not in dispute” will be treated as acceptance, not oversight (Lata headnote, point 4).
New points face a high bar.Singh v Dass remains the touchstone: a new point requiring fresh evidence, or one that would have changed how the hearing below was conducted, will not be entertained on appeal (Singh at §16-17).
The FtT’s reasoning need not be exhaustive. Provided the tribunal identifies and applies the correct legal test in substance, a judgment will not be struck down merely for lacking a concluding checklist (Hirtie at §64).
Witness credibility can suffice without expert evidence. Findings about the psychological impact of separation may properly rest on accepted witness testimony alone (Hirtie at §67).
The case is a useful, moderately short illustration of how tightly the appellate courts are now enforcing the “principal controversial issues” discipline established in Lata — a discipline that applies as much to the Home Office as to any other litigant.
In this episode of LawPod UK, Lucy McCann is joined by Professor Valena Beety, legal scholar, innocence litigator and former federal prosecutor, to discuss her new book Pink Crime. Professor Beety explores her concept of ‘Pink Crime’ a distinctive category of wrongful convictions of women and queer people, often in cases where no crime actually occurred, by examining historic cases and contemporary prosecutions involving pregnancy loss, parenting decisions, and queer identity.
The conversation considers the impact of the US Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization, including the growing criminalisation of miscarriage and stillbirth, as well as the ways in which similar assumptions about identity and deviance have shaped the treatment of LGBTQ+ people.
Lucy and Professor Beety also discuss the dangers of unreliable forensic evidence, the different approaches to equality in the US, Canada and the UK, and the role that lawyers can play in challenging unjust outcomes.
Law Pod UK is published by 1 Crown Office Row. Supporting articles are published on the UK Human Rights Blog. Follow and interact with the podcast team on Twitter.Contact us with feedback on LawPodUK@1cor.com
This decision is only available in French. The petitioner deputies (members of the French Assembly) referred to the Constitutional Council Article 1 and Articles 6 – 9 of the Act to protect minors from the risks posed by their use of social networks. The contested provisions of Article 6-9 of the Act of 21 June 2004 provide that access to an online social networking service provided by an online platform is, in principle, prohibited to minors under fifteen.
They challenged the conformity of this Act with the Constitution. criticising these provisions for instituting a general ban on access to social networks for all minors below a certain age threshold, without distinguishing between the services concerned, in particular according to their nature, their functionalities, the risks they generate, or the safeguards that could be put in place. In their view, such a ban would not be necessary, appropriate, and proportionate to the objective pursued, given that other, less restrictive measures could protect minors. They argued that these provisions therefore disregard minors’ freedom of expression and communication and are, moreover, tainted by negative incompetence (the legislature’s failure to exercise the full extent of its own jurisdiction). They further maintained that, through this ban, the legislature deprived holders of parental authority of the ability to assess whether it was appropriate for their child to access certain services, in violation of the protection of the best interests of the child.
In addition, the petitioning deputies noted that such a ban would necessarily entail the introduction of technical processes to verify the identity of social network users in order to confirm their age. They criticised the absence of any legislative provision governing the processing of this sensitive data and specifying who is responsible for it and the technical arrangements for such verification. In doing so, they argued, the legislature failed to exercise the full extent of its jurisdiction and deprived the right to respect for private life, as well as freedom of expression and communication, of legal safeguards.
Finally, the petitioners submitted that the scope of these provisions is too imprecise, since the legislature failed to define the scope of the penalties applicable in the event of a breach of the ban and failed to determine whether the ancillary social functionalities (“fonctionalités sociales accessoires) of certain platforms were also covered. They considered that this resulted in a failure to meet the constitutional objective of accessibility and intelligibility of the law.
They relied, inter alia, on Article 11 of the 1789 Declaration of the Rights of Man and of the Citizen, which proclaims: “The free communication of thoughts and opinions is one of the most precious rights of man: every citizen may therefore speak, write, and print freely, subject to accountability for abuse of that freedom in cases determined by law.” Given the current state of means of communication and the widespread development of online public communication services, as well as the importance these services have taken on for participation in democratic life and the expression of ideas and opinions, this right implies the freedom to access these services and to express oneself on them.
Article 34 of the Constitution provides: “Statutes shall determine the rules concerning … civic rights and the fundamental guarantees granted to citizens for the exercise of public freedoms.” On this basis, the legislature may enact rules concerning the exercise of the right to free communication and the freedom to speak, write, and print.
On Wednesday, the Guardian reported that the Metropolitan Police are planning to use live facial recognition (LFR) technology on Oxford Street – the busiest shopping street in the UK.
Furthermore, such infrastructure would be permanently installed, with cameras fixed to street furniture – making it the first of its kind in the country. At a session of City Hall in July this year, Mayor Sadiq Khan announced that the Met was working to ‘use LFR in a sensible way’.
LFR has attracted heavy criticism from human rights campaign groups, in particular regarding evidence that the algorithm used risks discrimination against black people.
Following the announcement, Ruth Ehrlich, from the campaign group Liberty, said:
‘If live facial recognition is to be deployed in one of the country’s busiest shopping and tourist destinations, there must be full transparency about how it will be used, what safeguards are in place and how its impact on people’s rights will be monitored.’
‘Gender Identity’ in the Scottish Parliament
On Saturday, the Times reported that the Scottish Government’s draft Human Right Bill for Scotland, which is due to be put before MSPs shortly, contains a clause requiring public bodies to consider ‘gender identity’ when delivering services and designing policy.
According to the Times, campaigners have criticised the proposed clause for going beyond the meaning of ‘gender reassignment’ – the relevant protected characteristic in the Equality Act 2010. It has been pointed out that ‘gender identity’ is currently left undefined in the ministers’ proposals.
While modification of the Equality Act is outside of the competence of the Scottish Parliament under schedule 5 of the Scotland Act 1998, legislation making supplementary provisions to the Act falls under an exception to the reserved matter.
The campaign group ‘For Women Scotland’, who notably succeeded against Scottish Government Ministers in the Supreme Court last year, have indicated that the bill represents another attempt by the Scottish Government to circumvent the Supreme Court’s decision on the meaning of ‘sex’ in the Equality Act.
In Cherrington v University of Derby [2026] EAT 107, the Mr Justice Cavanagh in the Employment Appeal Tribunal (“EAT”) held that an Employment Tribunal (“ET”) was not obliged to consider the Appellant’s Article 10 ECHR right to freedom of expression of its own motion when deciding whether or not his dismissal was fair. His right to freedom of expression did not “shout out” from his case, and nor was the ET obliged to consider the ECHR “as a matter of course” in unfair dismissal complaints, or even particular species of unfair dismissal complaints.
This case note briefly sets out the background to the case and the judgment, and then offers some brief comments by way of conclusion. References in square brackets are to paragraphs of the judgment.
On 2nd June 2026 the Supreme Court handed down their judgment in Re Attorney General for Northern Ireland’s Reference (Deprivation of Liberty) [2026] UKSC 16. You can read the full analysis of the case by Anogika Souresh and Esme Cairns posted on 9th June. A brief reminder: the Attorney General for Northern Ireland referred to the Supreme Court whether proposed revisions to the region’s Deprivation of Liberty Safeguards Code of Practice — allowing incapacitated adults’ expressed wishes and feelings to count as valid consent to care arrangements — would satisfy Article 5 ECHR, even though this diverged from Cheshire West’s approach.
In this episode of Law Pod UK Rosalind English discusses with Amelia Walker the unanimous decision by the Supreme Court to overturn Cheshire West’s rigid “acid test” which they said wrongly departed from Strasbourg jurisprudence, replacing it with a multifactorial approach weighing restriction type, setting, duration, and effect. Crucially, it held that lacking capacity doesn’t automatically preclude someone from validly consenting to arrangements that would otherwise be a deprivation of liberty.
Law Pod UK is published by 1 Crown Office Row. Supporting articles are published on the UK Human Rights Blog. Follow and interact with the podcast team on Twitter, and post feedback to LawPodUK@1cor.com
In R (Al Hashimi) v Secretary of State for the Home Department [2026] EWCA Civ 943, the Court of Appeal held that a woman living in the United Arab Emirates could not invoke Articles 8 and 14 of the European Convention on Human Rights (“ECHR”) to challenge sex discrimination in UK nationality legislation. The preliminary obstacle was Article 1: she was not within the United Kingdom’s jurisdiction for Convention purposes (§1).
The decision is a clear restatement of the territorial limits on the ECHR. A decision taken in the UK, even one that substantially affects the interests of a person abroad, does not itself establish jurisdiction over that person (§§28-29, 39).
On Thursday, the House of Commons Defence Select Committee (DSC) published a report which found that a serious data breach of the sensitive personal data of thousands of Afghans was a ‘foreseeable systemic failure’ that became part of a wider failure of governance, accountability and public trust [30].
In February 2022, a member of the Ministry of Defence (MoD) sent a spreadsheet to a trusted third party which mistakenly contained detailed personal information relating to over 18,500
Afghan Relocation and Assistance Policy (ARAP) applications [45]. The breach was not discovered until August 2023, when part of the dataset appeared in a Facebook group [63].
The Shifting heaven and earth? The Afghan data breach and resettlement schemes report found that the MOD handled sensitive immigration casework using tools and controls ‘not appropriate for a life-endangering dataset’, which contained the personal information of Afghans who faced danger from the Taliban in connection with their work with or for the UK. DSC chair, Tom Dhesi, said that the MoD “should never have been left to run immigration casework schemes”.
From September 2023, for nearly two years, an ‘unprecedented superinjunction’ prevented media outlets from reporting on the incident [2]. The report found that the government did not strike ‘the right balance between operational secrecy and democratic accountability’ [97] and warned that the case should not set a precedent for normalising injunctions that suppress matters of widespread public interest [104].
The report also raised concerns that the government’s ‘self-move’ policy – which requires eligible Afghans to make their own way to a third country within twelve months – announced in April, ‘risks becoming in practice an exclusion mechanism for eligible people who are too poor, too vulnerable or too exposed to travel independently’ [215]. The DSC called on the government to publish a clear policy explaining how they will help Afghans who are eligible to come to the UK but who have not yet been evacuated.
In the courts
Animal activists challenge protest regulations
This week, the High Court granted animal rights campaigners permission to apply for a judicial review of the Public Order Act 2023 (Interference With Use or Operation of Key National Infrastructure) Regulations 2026 (‘the Regulations’).
The Regulations classify ‘life sciences infrastructure’, including animal testing facilities, as ‘key national infrastructure’. Under Section 7 of the Public Order Act 2023, interfering with the use or operation of key national infrastructure is a criminal offence punishable by up to 12 months’ imprisonment, a fine, or both.
Before Parliament approved the Regulations, a coalition of animal welfare charities wrote to the home secretary, Shabana Mahmood, warning that the measures would restrict ‘lawful, peaceful protest against animal experimentation’ and create a ‘fear of excessive criminalisation’.
Animal Aid challenges the Regulations on two grounds. First, it argues that the definition of ‘life sciences infrastructure’ goes beyond the natural meaning of the term ‘infrastructure’ and extends the concept of ‘key national infrastructure’ beyond Parliament’s intention. Second, Animal Aid argues that by not consulting animal rights groups, the Secretary of State failed to conduct a lawful consultation on the proposed Regulations.
Lawyers for Animals and Maria Iriart, a campaigner with Camp Beagle, also announced this week that the High Court had granted permission in their separate judicial review. Their claim is brought on two grounds. First, they argue that the Home Secretary exceeded her powers by classifying the life sciences as ‘key national infrastructure’. Second, they argue that the Regulations are irrational because existing criminal offences already protect the sector, the Government has produced no meaningful evidence to justify the claimed risks and the concept of ‘interference’ is insufficiently defined.
Palestine Action
On Wednesday, Palestine Action’s co-founder, Huda Ammori, was granted permission to appeal to the Supreme Court against the Court of Appeal’s decision that the former home secretary, Yvette Cooper, had acted lawfully when banning the group last year under the Terrorism Act 2000.
The hearing is to be expedited and is due to be heard before the end of the year.
For further detail, see Jonathan Metzer’s in-depth analysis of both the Divisional Court’s and Court of Appeal’s judgments for the UK Human Rights Blog. You can also hear him discussing the Divisional Court’s ruling with Lucy McCann in episode 233 of Law Pod UK and the Court of Appeal’s reversal in episode 240.
On Monday, the Supreme Court ruled that a foreign state cannot invoke state immunity in proceedings relating to personal injury caused by acts within the UK, even if other causative acts take place abroad and the actor is not present in the UK [134].
The case stems from a claim brought by Bahraini activists, Dr Saeed Shehabi and Moosa Mohammed, who allege that agents of the Kingdom of Bahrain installed and operated spyware on their computers [8]. At the time the spyware was allegedly installed and used, both activists and their computers were located in the UK. However, the spyware was allegedly operated by Bahraini agents from outside the UK via a server located in Bahrain [156].
The central issue before the Court was whether the ‘territorial tort exception’ in section 5 of the State Immunity Act 1978 (SIA) would apply in cases where the actors or some of the acts causing personal injury were located outside the UK [49]. Section 5 of the SIA provides that a foreign state cannot rely on state immunity to escape accountability for death, personal injury or property damage ‘caused by an act or omission in the United Kingdom’ [1].
The Supreme Court held, by a majority of 3 to 2, that limiting the scope of section 5 of the SIA to situations where an agent of a foreign state was present in the UK at the time when the acts which caused the injury occurred (a presence requirement) would be ‘an unduly restrictive reading’ and fail to take account of the ability of modern technology to carry out acts remotely from abroad [133]. The Court emphasised that a rigid distinction between an act and its effects can lead to ‘artificial and unprincipled results’ [129].
Although article 11 of the European Convention on State Immunity (ESCI) expressly imposes a presence requirement, the Court held that the principle of consistent interpretation had no application [77]. The SIA was not intended to be a precise implementation of the ECSI and Parliament had made a ‘deliberate decision’ to depart from the ECSI scheme in this particular respect [76].
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