Media By: Guest Contributor


Women “groomed, pimped and trafficked” as teenagers not required to disclose prostitution convictions to employers

6 March 2018 by

Demo 9 - Credit Making Herstory.png

Credit: Onjali Rauf from Making Herstory

R (QSA and others) v Secretary of State for the Home Dept and Secretary of State for Justice [2018] EWHC 407 (Admin) – read judgment

The High Court ruled on 2nd March 2018 that three women forced into prostitution as teenagers will no longer have to disclose related convictions to potential employers.

The claimants challenged the criminal record disclosure scheme which required them to reveal details of multiple decades-old convictions for ‘loitering or soliciting’ for the purposes of prostitution.

The women had been groomed, coerced or forced into sex work, two of them when they were children. They were required to divulge their convictions under the regime of the DBS (Disclosure and Barring Service) governed by Part V of the Police Act 1997. DBS checks (previously CRB checks) are made when an applicant seeks certain paid or voluntary work involving children or vulnerable adults. While the claimants weren’t strictly barred from such jobs, they had to inform would-be employers of their historical convictions. They said this placed them at an unfair disadvantage, caused embarrassment and put them off applying in the first place. They argued that this interference with their private and working lives was unjustified by the scheme’s aims and unlawful. The Court agreed.

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The new German social media law – a risk worth taking? An ‘extended look’ by Stefan Theil

19 February 2018 by

social media.pngThe German Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurchsetzungsgesetz) (literally: Law on the improvement of law enforcement in social networks and known as ‘NetzDG’) has attracted much media attention, e.g. here and here, since fully entering into force on 1 January 2018. This was sparked to a significant extent by a few high profile deletions, including a tweet from the responsible Minister for Justice.

This contribution will give an overview of the NetzDG and explain how some of the criticisms are overstated and partially misguided. While the NetzDG is unlikely to resolve all challenges surrounding social media and freedom of expression, and undoubtedly presents a certain risk of stifling expression online, I believe it is nonetheless a significant step in the right direction. Rather than undermine freedom of expression, it promises to contribute to more inclusive debates by giving the loud and radical voices less prominence. In any case, it appears reasonable to let this regulatory experiment play out and observe whether fears over a ‘chilling effect’ on free expression are borne out by the evidence. A review of the law and its effects are is planned after an initial three year operation period, which should deliver ample data and regulatory experience while limiting the scope for potential harm.

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The Round up: Assange’s arrest warrant, victims of human traffickers, and a Convention Right victory for salmon fisherman

18 February 2018 by

Eleanor Leydon brings us the latest developments in rights law.

In The News:

A Senior District Judge has ruled that upholding the warrant for Julian Assange’s arrest is both in the public interest and proportionate, albeit that Assange has already restricted his own freedom for several years. In determining the proportionality of the proceedings the judge had regard to the seriousness of the failure to surrender, the level of culpability at this stage of the proceedings, and the harm caused, including impact on the community.

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Court of Appeal gives guidance on immigration cases involving medical treatment: an extended look – Paul Erdunast  

13 February 2018 by

 

the-royal-courts-of-justice-1648944_1280On 6th February 2018, the Court of Appeal in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64 gave authoritative guidance on how Paposhvili v Belgium (Application no. 41738/10), which was decided last year by the Grand Chamber of the European Court of Human Rights, should be applied by English courts.

The issue in AM (Zimbabwe) concerned the applicable test for when removal of seriously ill people to their country of origin would raise an issue under Article 3 of the European Convention on Human Rights (prohibition on inhuman or degrading treatment). Sales LJ, giving the judgment of the Court of Appeal, decided that removal would only violate Article 3 if intense suffering or death would be imminent in the receiving state as a result of the non-availability of treatment which would have been available in the UK (AM para 38).

This ‘extended look’ analysis piece will call into question whether the Court of Appeal’s interpretation of Paposhvili into English law is correct.

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No power to grant immigration bail if no power to detain — Jake Richards

13 February 2018 by

supreme court

R (on the application of B) v Secretary of State for the Home Department [2018] UKSC 5

On 8th February 2018, the Supreme Court held that the power to grant bail and impose bail conditions in respect of a person pending deportation ceases to be lawful if there is no legal basis for detaining that person. The power to impose bail conditions is inextricably linked to the power of detention. Once the Home Secretary ceases to have the power to detain a person under immigration law, she can’t then impose conditions on that person’s freedom through bail conditions.

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The Forum Bar: it does exist — Bruno Min

9 February 2018 by

Fly Aircraft Transport Jet Aeroplane ManchesterOn 5th February 2018 the Divisional Court gave judgment in Love v USA [2018] EWHC 172 (Admin), holding that the forum bar operated against the extradition of Lauri Love to the United States to face charges of making a series of cyber-attacks on the computer networks of private companies and US Government agencies.

This is the first reported case in which the ‘forum bar’ has been applied to block an extradition.

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The Henry VIII powers in the EU (Withdrawal) Bill: Political and Legal Safeguards — Antonios Kouroutakis

7 February 2018 by

Parliament debate.jpgWhen Britain joined the European Economic Community in 1973 along with Ireland and Denmark, it marked the first enlargement of what we today call the European Union.  Since 1973, the club of the nine members has become a union of 28 member states. Most importantly, the law of the EU has developed significantly in terms of validity, scope and substance.  What we were studied in the law school with EU law was in essence the institutions, the processes and the tools that are available for the European integration. And in fact EU law has achieved a remarkable degree of integration in some areas such as the Eurozone and the internal market. However, with Brexit, a new chapter is in the writing, this time on the withdrawal from the EU.

 

A constitutional pathology

The withdrawal of the United Kingdom from the European Union after 44 years poses unprecedented legal challenges but provides useful lessons for the withdrawal process. Until today, this issue was a footnote in the textbooks, with the case of Greenland (which left in 1985) being the only precedent. Greenland joined the European Economic Community in 1973 with Denmark, then gained its autonomy (home rule) from Denmark in 1979 and in a referendum that took place in 1982, 53% percent of the population voted in favour of leaving the European Community. But it is beyond doubt that the exit of Greenland was much less complex, with the main topic for negotiation being the fishing industry.

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Sovereignty or Supremacy? Lords Constitution Committee Reports on EU (Withdrawal) Bill — Mark Elliott and Stephen Tierney

29 January 2018 by

EU flagThe House of Lords Constitution Committee today issues its main report on the European Union (Withdrawal) Bill. This follows the preliminary and interim reports on the Bill that the Committee published last year. The new report is wide-ranging and hard-hitting, the Committee’s view being that the Bill ‘risks fundamentally undermining legal certainty’.

In this post, we make no attempt to summarise the report. Rather, we focus on two key and interlocking chapters that address the legal nature and constitutional status of the new body of domestic law — ‘retained EU law’ — that the Bill will create. In doing so, we highlight the Committee’s view that central parts of the Bill are ‘conceptually flawed’ and that relevant retained EU law should be reconceived by treating it as if it were contained in an Act of Parliament enacted on ‘exit day’.

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High wire walking without a mat: doctors, patient safety and public confidence

27 January 2018 by

General Medical Council v.  Dr Bawa Garba, Divisional Court, 25 January 2018 – read judgment here

By Jeremy Hyam Q.C. of 1 Crown Office Row: see end of post for his involvement.

On 4th November 2015, Dr Bawa Garba was convicted of gross negligence manslaughter of a 6 year old boy. She was sentenced to two years of imprisonment suspended for two years. On 29 November 2016 the Court of Appeal Civil Division refused her leave to appeal against her conviction.

This case concerns proceedings before the Medical Practitioners Tribunal Service (MPTS), the MPTS’s decision to suspend her, and the GMC’s successful appeal on the basis that Dr Bawa Garba should have been erased from the register.

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High Court decision refusing ultra-Orthodox transgender father access to children quashed — Paul Erdunast

22 December 2017 by

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Re M (Children) [2017] EWCA Civ 2164, 20 December 2017, read judgment

The Court of Appeal reversed the judgment of the High Court that a transgender father from the ultra-Orthodox Jewish community should not have direct contact with her children. The case was remitted to the Family Court for reconsideration.

 

Facts

The factual background is fully set out in the High Court judgment of Peter Jackson J (as he then was). The parents and their five children are all from the ultra-Orthodox Charedi Jewish community of North Manchester. The mother and children remain there, while the father no longer lives within the community after leaving in June 2015 to live as a transgender woman. Both parents agree that the children should be brought up within the community.

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Supreme Court holds that the smoking ban cannot be enforced in prisons — Hannah Wilce

21 December 2017 by

R (on the application of Black) v The Secretary of State for Justice [2017] UKSC 81

Read Judgment

cigarette 2Is the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006 (“the smoking ban”)?

This was the question asked of the Supreme Court by a prisoner serving an indeterminate sentence at HMP Wymott.  As Lady Hale noted in the judgment: this issue affects all premises occupied by the Crown, including central government departments, and that it is important to determine whether the ban can be properly enforced in these places.

The answer the court gave is ‘no’, as this provision does not bind the Crown, of which HMP Wymott is an institution.

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Indefinite Detention and the Rule of Law — Catherine Jaquiss

12 December 2017 by

temple church.jpgOn 1 December 2017 an event in Temple Church with the Bar Council in collaboration with Refugee Tales, an outreach project whose aim is to see the end of indefinite immigration detention, saw an announcement of new recommendations for reform of the system of immigration detention.

 

This followed from the publication on 30 November 2017 of ‘Injustice in Immigration Detention, Perspectives from Legal Professionals’, an independent report by Dr Anna Lindley of SOAS. Read the report here: http://www.barcouncil.org.uk/media/623583/171130_injustice_in_immigration_detention_dr_anna_lindley.pdf

 

The Bar Council, led by Andrew Langdon QC, is making a series of recommendations in light of the report, as follows:

 

  1. A 28-day time limit for administrative detention;

 

  1. Automatic judicial oversight of the arrangements for holding people in administrative detention;

 

  1. Adequate legal aid for advice and representation for those held in immigration detention to challenge the loss of their liberty;

 

  1. A ban on the use of prisons for the purposes of administrative detention;

 

  1. Special care for vulnerable people and victims of torture held in administrative detention; and

 

  1. Review and clarification of the criteria for administrative detention. The relevant policy and rules need to be accessible and intelligible so that all those who are affected by the exercise of powers to detain understand the reasons for the exercise of those powers and can challenge decisions where appropriate.

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The Current Situation in Cambodia — Rajkiran Barhey

6 December 2017 by

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On 5th December 2017, an event exploring the current political situation in Cambodia was held at Chatham House. The discussion was led by Sam Rainsy, a key member of Cambodia’s recently dissolved opposition party, the Cambodian National Rescue Party (CNRP). The discussion touched on a plethora of issues relevant to politics and human rights in Cambodia, ranging from the impact on Cambodia of China’s dam-building project to the Khmer Rouge Tribunal.

 

This article will provide a brief history of Cambodia before reviewing four topics which were considered at the event: (1) the influence of China; (2) the power of the army; (3) sanctions and aid; and (4) the 2018 election.

 

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Cohabiting partners should have same rights as spouses to claim bereavement damages — Lucy Eastwood

30 November 2017 by

House

 

Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916 – read judgment

In a landmark decision handed down on 28th November 2017 the Court of Appeal ruled that cohabiting couples should have a right to claim bereavement damages, putting them in a position analogous to spouses and civil partners.

 
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Separate but not equal? – Rajkiran Barhey

30 November 2017 by

Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al Hijrah School [2017] EWCA Civ 1426 – read  judgment

Update: Listen to the Law Pod UK podcast episode 20, available for free download from iTunes or from Audioboom here.

This fascinating judgment, delivered by the Court of Appeal on 13 October 2017, found that a policy of gender segregation in a co-educational school amounted to unlawful gender discrimination.

Background

Al-Hijrah School taught children from ages 4-16 according to an Islamic ethos. At age 9, children were segregated completely by gender in lessons, breaks, school trips, clubs etc. Following an inspection in June 2016, Ofsted published a report criticising segregation as gender discrimination.
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