The ICC has issued an arrest warrant against Vladimir Putin for the war crime of the unlawful deportation and transference of children. The Russian commissioner for children’s rights, Maria Alekseyevna Lvova-Belova, has also been issued an arrest warrant. According to Ukrainian government figures, 16,266 children have been deported to Russia since the beginning of the war. Russia is not a member of the ICC and so it is unlikely that the suspects will be arraigned in court, but it will make international travel more difficult and place political pressure on the Russian government. This is the first instance of the court issuing an arrest warrant for the leader of one of the five permanent members of the UN security council.
Donald Trump told supporters on his social network Truth Social that he expects to be arrested on Tuesday and has urged them to stage mass protests. If indicted, Trump would be the first former US president to see criminal charges. The case concerns ‘hush money’ payments made through Trump’s lawyer to porn star Stormy Daniels before the 2016 presidential election. Once all the evidence has been taken, the grand jury will vote on whether to recommend criminal charges to the Manhattan District Attorney, Alvin Bragg, who determines what charges he thinks he can prove beyond reasonable doubt, if any, but there is no deadline on this process. Trump promises to continue his campaign for the 2024 presidential nomination even if he is indicted. He also faces upcoming inquiries into his attempt to overturn the result of the 2020 election.
Suella Braverman has said she has been “encouraged” by “constructive” talks with the ECHR about changing the Rule 39 injunction process that blocked the Home Secretary deporting migrants in 2022. The UK Government has requested a higher legal threshold for any such injunction that may be imposed on future deportation flights, and advised the ECHR that the British judiciary has ruled the Rwanda deportation scheme lawful. A government source says changing the injunction is likely to prove a necessary step in getting the scheme “off the ground,” Braverman having vowed to enact it by the summer.
In other news
The Morrisons supermarket chain has been fined £3.5million after an employee died when he fell from the stairs during an epileptic seizure. Matthew Gunn suffered fatal head injuries at a Morrisons shop in Gloucestershire in September 2014. A jury found the company guilty of three health and safety charges. The management staff had been made aware of Gunn’s epilepsy but did not take adequate steps to prevent the danger, failing to move his locker to the ground floor so that he did not have to risk using the stairs. Gunn’s parents described the devastating impact that their son’s death had on their physical and mental health, as well as on their marriage.
CIVICUS Monitor, a global research organisation which rates countries’ democratic and civic values, has downgraded the “increasingly authoritarian” UK in its annual global index of civic freedoms. Because of the government’s introduction of restrictive legislation including those related to protests, the CIVICUS ‘People Power Under Attack 2022’ report downgraded the UK’s rating from “narrowed” to “obstructed,” a category which includes Poland, Hungary and South Africa. Highlighted legislation included the Police, Crime, Sentencing and Courts Act and the Public Order Bill (currently going through Parliament), which give the police additional powers to restrict the activities of protesters, and the group also point to the government’s “hostile rhetoric” towards migrants and human rights campaigner groups.
The White House said Joe Biden spoke to Benjamin Netanyahu about his government’s plan to reform Israel’s judicial system. The prime minister has described the overhaul as necessary to rebalance a power structure which prevents legislators from enacting the voting public’s will, while the US president “underscored his belief … that democratic societies are strengthened by genuine checks and balances.” Opponents of the proposed measures have staged a series of large-scale protests in which members of the military elite have participated.
The Ministry of Justice has announced plans to increase sentences for murderers with a history of coercive behaviour or who use excessive violence towards their victims. The proposals come after recommendations from barrister Clare Wade, who criticised the current sentencing guidelines for failing to take into account the history of abuse that precedes many domestic murders. The government also plans to review manslaughter sentencing in ‘rough sex’ cases.
The Illegal Migration Bill has been presented in parliament and published. The bill has sparked extensive legal discussion over potential issues of compatibility with the European Convention of Human Rights. Indeed, the government stated their wish to proceed with the bill in the absence of being able to make a statement of convention rights compatibility under s.19(1)(a) Human Rights Act 1998. This in conjunction with Suella Braverman’s widely quoted statement that this “does not mean the provisions in the bill are incompatible with convention rights, only that there is a more than 50 per cent chance that they may not be”, has been less than reassuring and many anticipate future challenges under the ECHR. Human Rights Watch have gone as far as to state that the bill is “unworkable”.
The Home Office and Department for Education have been threatened with legal action if they fail to stop housing unaccompanied asylum-seeking children in hotels on the basis that this fails to ensure crucial protection and scrutiny over children’s welfare. Meanwhile, 21 London borough councils have signed a letter to the home secretary regarding the treatment of asylum seekers and urging the government to overturn their hotel policy and establish alternative placement options.
The Data Protection and Digital Information (No 2) Bill was also introduced to parliament this week. It includes changes to definitions of personal data as well as proposing a broader definition of “scientific research purposes” which could expand the contexts in which personal data can be processed. A useful analysis of the bill can be found here.
In the courts
The High Court has found in favour of a mother who brought proceedings against the Ministry of Justice over a legal aid dispute. She had been refused legal aid funding when trying to enforce a child custody agreement because her abusive ex-partner had limited her access to her son. The legal aid agency had denied funding on the basis that her son was not living with her and therefore not a dependant. The court held that the Ministry of Justice’s guidance stipulating that a child could only be a member of one household was unlawful. This decision requires the Ministry of Justice to adjust their guidance to expand the scope of legal aid funding.
Climate activists who protested as part of an Insulate Britain campaign have recently been imprisoned for contempt of court. This was due to having explained their motivation for protesting to the juries, contrary to the judge’s direction. The court’s restrictive approach on expressing such motivation has sparked discussion about the limits of freedom of expression.
The European Court of Human Rights have held that there was a violation of the right to respect private and family life (Article 8, ECHR) as well as violation of the limitation on the use of restrictions of rights (Article 18, ECHR) in the case of Kogan and Others v Russia. The case concerned a Government procedure for revoking a residence permit that had been issued to a US-national human-rights activist. It was held that this revocation was aimed at punishing human-rights activities and therefore unlawful.
Rishi Sunak’s pledge to “stop the boats” crossing the Channel will see a Bill brought before Parliament this week aimed at stripping those who arrive in the UK via small boats of their right to claim asylum. Potential measures under the Bill include new powers to declare claims inadmissible and a duty on the Home Secretary to remove such asylum-seekers to Rwanda or another third country. There may also be new criminal offences created for those who arrive via small boats, building on or adopting the draft Illegal Immigration (Offences) Bill. It is not clear how these plans will comply with the UK’s international obligations given the European Court of Human Rights’ previous intervention on the issue and their granting of an interim injunction, although the High Court gave the plans the green light back in December. The move also raises questions about the government’s plans for a domestic ‘Bill of Rights’, which previously included a clause obliging the UK courts to ignore interim measures from Strasbourg.
Suella Braverman is expected to introduce an amendment to the Public Order Bill to provide protective measures for journalists following defeats in the House of Lords. The Lords voted in favour of preventing reporters from being subject to police action after Hertfordshire police had to issue an apology to various reporters and photographers were detained at a Just Stop Oil demonstration in December last year. The government has not accepted the wording of the Lords’ amendment, with their proposed version merely preventing a police constable from detaining a person for the sole purpose of observing or reporting on a protest, which begs the question what exactly the government aims to exclude in doing so.
In episode 180 of Law Pod UK, Lucy McCann speaks to Dr Stefan Theil, the John Thornley Fellow and Director of Studies in Law at Sidney Sussex College, University of Cambridge, about what role the law can play in tackling the climate crisis. Dr Theil discusses the framework and central argument in his recent book ‘Towards the Environmental Minimum’ (Cambridge University Press, 2021). In the episode Dr Theil argues for an incremental human rights-based approach to combat the climate crisis and environmental degradation, and explores the extent to which courts are well placed to adjudicate on environmental issues. The discussion covers the concept of polycentricity, protections offered by domestic constitutions and the value of ascribing rights beyond human beings.
Two men are in a relationship and want to have a child. They approach a female friend who is happy to be their surrogate. She has previously had a voluntary sterilisation procedure, so she would need in-vitro fertilisation (IVF) using a donor egg (a procedure known as gestational surrogacy), to help her friends realise their wishes. This is where they all encounter a problem: voluntary sterilisation makes the woman ineligible for publicly funded IVF.
In JR176(2)’s application for judicial review  NIKB 21, the two men challenged the eligibility criteria for publicly funded IVF on a number of grounds, among which this post will focus on two: a breach of the right to private and family life under Article 8 ECHR and Article 8 taken with the right not to be discriminated against contrary to Article 14 ECHR.
The UN General Assembly backed a resolution condemning Russia’s actions and calling for an end to the war on Thursday, the eve of the anniversary of the invasion. With 141 supporters, 32 abstentions and seven voting against, the resolution reiterated the UN’s support for Ukraine and called for a “comprehensive, just and lasting peace.” Abstentions included China, India and South Africa, while Russia, North Korea and Syria were among those voting against. General Assembly resolutions are not legally binding but carry great political weight, and the UN Security Council is obstructed from action by Russia’s veto. On the same day in Vienna, a large number of delegates walked out of a parliamentary assembly of the Organization for Security and Co-operation in Europe (OSCE) in protest against Austria’s decision to give visas to Russian officials.
Leading supermarkets in the UK have introduced customer limits on purchases of fruits and vegetables. According to the British Retail Consortium, the shortages are expected to last a few weeks until reliance on imports from Spain and north Africa is counteracted by the start of the UK growing season. Tom Bradshaw, one of the leaders of the National Farmers’ Union (NFU), has called for the UK to “take command” of its supply chains. Citing Brexit, the Ukraine War, and climate change, the NFU wants the government to use the powers granted it by the Agriculture Act 2020 to address exceptional market conditions.
The Marriage and Civil Partnership (Minimum Wage) Act comes into force on Monday. Campaigners argued that the previous position of the law, which permitted 16- and 17- year-olds to marry with parental consent, was being exploited to coerce young people into child marriages for religious or cultural reasons. The new law will automatically recognise those married under the age of 18 as victims of forced marriages, carrying a sentence of up to seven years in prison for those responsible. The legislation also applies to non-legally binding ceremonies. This law does not apply in Scotland and Northern Ireland, where the minimum marriage age will remain 16.
In other news
Ex-Hollywood producer Harvey Weinstein has been sentenced by a Los Angeles court to an additional 16 years in prison for rape. Weinstein was convicted of attacking an actress in a hotel room in February 2013. He denied the charge, telling the court his accuser was “an actress with the ability to turn on her tears” and begged for leniency: “please don’t sentence me to life in prison, I don’t deserve it.” The 70-year-old had already been serving a 23-year sentence in New York for another conviction.
Dominic Raab has announced that rules barring transgender women with male genitalia or those who had committed violent or sexual offences from female prisons in England and Wales apply from Monday. The news follows the recent case of Isla Bryson, the transgender woman convicted of two counts of rape who was subsequently remanded to a woman’s prison in Scotland, the media outcry against which prompted the Scottish Prison Service to announce an “urgent review” of transgender inmates.
Restricting the liberty of a child is a serious step only to be taken in the most difficult of circumstances. Children may require secure accommodation by the Local Authority in a variety of circumstances. A child could require urgent mental health treatment in a secure hospital. A child may require strict supervision with a high staff to child ratio, in order to protect them from harm and meet their complex needs. Applications are made where a child poses a significant risk of harm to themselves or others. Applications for secure accommodation or deprivation of liberty orders have increased significantly in recent years. There is now a severe lack of regulated accommodation, and the courts are having to use their inherent jurisdiction to approve DOLS regimes where unregulated placements are the only option.
In Episode 179 of Law Pod UK Lucy McCann speaks to Richard Ager and Clare Ciborowska who examine the current situation and, in particular, consider the case of Re X (Secure Accommodation: Lack of Provision)  EWHC 129 (Fam) in which Sir Andrew McFarlane, President of the Family Division of the High Court, gave a scathing Judgment on the provision of secure accommodation to children in England & Wales. The episode also explores the recent decision of Manchester City Council v P ( EWHC 133 (Fam) which considered whether restrictions placed on a child in respect of mobile phone/internet use amounted to a deprivation of liberty.
The episode discusses the new national deprivation of liberty court. The Nuffield Family Justice Observatory recently published this report, analysing the first two months of applications to the national deprivation of liberty court.
In a headline-grabbing decision, the Supreme Court has decided that an observation platform at the Tate Modern Art Gallery (“the Tate”), which overlooks a number of nearby luxury apartments, gives rise to the tort of nuisance –read judgment
In 2017 a group of apartment owners from the Neo Bankside building issued proceedings complaining that visitors accessing the south side of the Tate’s observation platform could, and frequently did, look directly into the living areas of their homes (which have floor-to-ceiling windows). The judgments refer to visitors “peering in”, “looking”, in some instances waving to the flat occupants (friendly), and there was even a mention of someone looking in using binoculars (creepy). The evidence at trial also established that pictures taken from the platform, including views of the apartment interiors, had been posted on social media. The owners alleged that the Tate’s operation of the observation platform gave rise to the tort of nuisance, and they sought an injunction requiring it to prevent the intrusion they were experiencing (for example by blocking off that part of the platform), or damages in the alternative.
The pumping of raw, untreated sewage into Britain’s waterways is one of the defining political issues of the day. Its potency as a legal issue, however, is limited. That, at least, is the outcome of R (Wild Justice) v OFWAT  EWCA Civ 28.
The Claimant, a not-for-profit organisation which advocates for the protection of wildlife and nature, asked the Court of Appeal for permission to apply for judicial review of the Respondent’s alleged failure to perform its duties to regulate the discharge of raw sewage.
Permission had already been refused twice below – on the papers by Ellenbogen J, and at an oral hearing by Bourne J. This appeal was heard by Bean LJ.
The United States has formally determined that Russia has committed crimes against humanity in Ukraine. Speaking at the Munich Security Conference on Saturday, US Vice-President Kamala Harris accused Russia of ‘gruesome acts of murder, torture, rape and deportation’ and said those who had committed crimes would be held to account. UK Prime Minister Rishi Sunak also spoke at the event over the weekend, where he urged leaders to ‘double down’ on military support for Kyiv.
Syria and Turkey continue to face devastating consequences in the aftermath of last week’s earthquakes. The death toll caused by the 7.8 magnitude tremor has surpassed 46,000 and is expected to continue to rise. In Turkey, the scale of the damage has been partly attributed poor construction practices and President Erdogan’s government has been criticised for failing to implement stricter building regulations.
In Syria, the UN is facing backlash for failing to deliver humanitarian relief to the north-western, opposition-held regions of the country. The Syrian government has allowed two new border crossings to be opened from Turkey. The UN’s decision, however, to wait for President Assad’s permission to use these routes has been widely condemned. Meanwhile, the British government has pledged an additional funding package to support the earthquake recovery effort.
Finally, Boris Johnson has urged Prime Minister Rishi Sunak not to abandon the Northern Ireland Protocol Bill. Set in motion by Mr Johnson’s government, the bill gives the UK Government powers to dispense of parts of the Northern Ireland Protocol. An announcement on a prospective new agreement between Sunak’s government and the EU on Northern Ireland is expected this week.
The Public Order Bill has concluded its Report Stage in the House of Lords and is now due to return to the House of Commons. The Peers voted down several government proposed amendments including those which allowed police powers to (i) pre-emptively shut down protests before any disruption is actually caused; (ii) stop and search without suspicion; (iii) impose Serious Disruption Prevention Orders without conviction. The removal of these amendments does mitigate some of the damage that the Bill threatened to have on the Article 11 right to protest. However, not all amendments were put to a vote and concern prevails about the future impact of the bill.
The UK government has introduced a new amendment to the Social Housing Regulation Bill which enforces time limits within which landlords will have to investigate and fix instances of damp and mould. Tenants will be able to rely on these rules which will be incorporated into tenancy agreements. This new amendment is named “Awaab’s law” after two-year old Awaab Ishak who died from respiratory failure that was caused by a landlord’s failure to resolve mould issues in his home.
Three recent cases indicate a substantial change in law and practice, with inquests now seemingly free to make a determination of unlawful killing notwithstanding the acquittal of a defendant at a criminal trial.
The coronial and criminal jurisdictions have a long and tangled relationship. The word “murder” derives from “murdrum”, the Medieval tax levied on a community after a coronial finding that an unidentified body was that of a Norman. In later centuries, juries at inquests could find people guilty of murder, empowering the coroner to issue an arrest warrant and commit them for trial. Yet from common soil and entwined roots, inquests and trials grew into increasingly distinct plants and during the twentieth century the primacy of criminal investigations and prosecutions became enshrined in legislation. Coroners were required to suspend inquests during criminal proceedings. If resumed, those inquests were prohibited from coming to conclusions that were “inconsistent” with the verdict of the criminal court: see what is now para.8(5) of Schedule 1 of the Coroners and Justice Act 2009 (“CJA 2009”). After 1977, inquests were prohibited from appearing to determine criminal liability on the part of a named person: see what is now s.10(2)(a) CJA 2009. The conclusion of “unlawful killing” remained, but inquests could no longer formally identify who was responsible; that was a matter solely for the criminal courts.
The Strikes (Minimum Service Levels) Bill has been voted through the House of Commons amidst historic industrial action across the UK. Workers in health, education, transport and the civil service came out on strike in disputes over pay, jobs and conditions, and members of the Fire Brigades Union have voted overwhelmingly in favour of walking out. The synchronisation of strikes across different sectors has seen levels of disruption not seen in at least decades. The government has published a memorandum on the compatibility of the Bill with the ECHR, but the issue is far from clear cut – the Labour party and trade unions have opposed the Bill, and the Joint Committee on Human Rights has put written questions to the Secretary of State. The TUC has not ruled out legal action if the Bill is passed, and February 1st saw nationwide protests on the “right to strike day”.
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