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‘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].
In Privacy International v Investigatory Powers Tribunal, the Divisional Court held that s.5 Intelligence Services Act 1994 does not permit the government to issue general warrants to engage in computer network exploitation (“CNE”) – more commonly known as computer hacking. The court also offered valuable guidance on warrants and what is required to make them lawful.
The Issues
There were three issues:
1. Does s.5 Intelligence Services Act 1994 (“the 1994 Act”) permit the Secretary of State to issue ‘thematic’ or ‘general’ warrants to hack computers? General warrants are those which purportedly authorise acts in respect of an entire class of people or an entire class of acts (e.g. ‘all mobile phones in London’).
2. Should the court allow the claim to be amended to include a complaint that, prior to February 2015, the s.5 regime did not comply with Articles 8 and 10 of the European Convention on Human Rights?
3. If permission is given to amend the claim, should the new ground succeed?
Conor Monighan brings us the latest updates in human rights law
In the News:
Internationally there were a number of developments which have significant consequences for human rights. In Russia a prominent critic of Vladimir Putin has allegedly been poisoned. Alexei Navalny, who is known for exposing corruption within the country, suddenly fell ill last week after drinking tea.
Supporters claim the Russian state has tried to silence Mr Navalny’s criticism of President Putin, and then attempted to cover up its actions by stopping Mr Navalny from being treated abroad. Despite initial resistance from doctors, who said that Mr Navalny was too ill to be moved, the leader has now been flown out of Russia. Critics say the developments are part of a wider crackdown on freedom of speech within the country.
Enables ministers to use regulation to add to the list of possible ‘victims’ of hate crime. There are already suggestions that misogyny will be added.
The definition of hate crime is extended to include ‘aggravation of offences by prejudice’.
Creates a new crime of ‘stirring up hatred’ against any of the groups which the Bill protects.
Updates and amalgamates existing hate crime law.
Abolishes the offence of blasphemy.
In addition, a new offence of misogynistic harassment is being considered.
The Bill was created following Lord Bracadale’s independent review of hate crime law. Official figures show that hate crime is on the rise in Scotland and the Bill seeks to address this.
However, the Bill has caused considerable concern. Many have suggested that the Bill unduly restricts freedom of speech. The President of the Law Society of Scotland, Amanda Millar, said she had “significant reservations” and indicated that “views expressed or even an actor’s performance” could result in a criminal conviction.
Groups ranging from the Catholic Church to the National Secular Society have also spoken against the plans. The Scottish Newspaper Society expressed reservations.
Some have claimed that JK Rowling, who recently tweeted her views about transgender rights/ feminism, could be imprisoned for 7 years under the Bill. Opponents also point to the experience of Threatening Behaviour at Football and Threatening Communications Act 2012, which sought to target football hooliganism. The Act was later repealed due to concerns about freedom of speech and its ineffectiveness.
James Kelly, Labour’s justice spokesman, has pointed out that the Bill would not require ‘intention’ in order for criminality to be found. He suggested that religious views could be negatively affected by the proposals.
In response, the Scottish government points out that the Bill makes clear that criticising religious beliefs or practices does not, in itself, constitute a criminal offence. Ministers have also emphasised that the draft legislation seeks to protect minorities and oppressed groups.
Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: Lorie Shaull
Anti-racism protests, sparked by the death of George Floyd, continued across the world. This week much of the focus has been on statues commemorating controversial historical figures. In Bristol, campaigners toppled the statue of a 17th century slave trader called Edward Colston.
The move led to a debate about what ought to be done with such statues. The founder of the Scouts, Robert Baden-Powell, was accused of racism, homophobia, and anti-Semitism. Initially it seemed his statue would be put into storage, but following an outcry it has been boarded up instead. A number of other figures have received similar treatment, including Sir Winston Churchill.
In the US, it seems change is coming to policing. The Democratic Party is proposing a police reform bill which, if passed, would become the Justice in Policing Act of 2020. The Bill would ban chokeholds from being used, limit the use of military weapons, and restrict qualified immunity (the legal principle which has prevented many officers from being sued for alleged misconduct). President Trump confirmed that he ‘generally’ supported ending the use of chokeholds.
There have been significant protests in the USA following the death of George Floyd. Mr Floyd, a black man, died after his neck was knelt on whilst he was being detained. Mr Floyd repeatedly said he couldn’t breathe, but despite this the position was maintained for several minutes.
Derek Chauvin, the white officer who detained him, has been arrested and charged with murder. Three other officers have been sacked. The County Prosecutor has suggested it is likely they will also be charged in due course.
The case has triggered widespread protests about the treatment of black people by the police. Previous incidents, such as the fatal shooting of Michael Brown, exacerbate concerns. Thousands also protested in London, where the march moved from Trafalgar Square to the US embassy (located in South London).
In the US the largely peaceful protests have been marred by looting and arson attacks. The police station in Minneapolis was set on fire. A number of US cities have imposed curfews which have been defied. Police have used tear gas and rubber bullets to try and control crowds.
A black CNN journalist and his camera crew were arrested by police whilst reporting in a protest in Minnesota. The group was later released and the governor apologised for the arrest.
Conor Monighan brings us the latest updates in human rights law
In the News:
The long-delayed Domestic Abuse Bill returned to Parliament last week. It contains a number of measures, including a statutory definition of domestic abuse. The new definition will include not only physical violence, but also emotional, coercive and economic harm.
The Coronavirus has highlighted the importance of the Bill. Many have expressed concern about the impact of the lockdown on abused individuals. Victims are trapped in their homes and many domestic abuse services reduced their support.
Disturbingly, the National Domestic Abuse helpline has seen a 25% increase in calls, and the Metropolitan Police has reported a similar increase in charges and cautions.
In Parliament, a number of MPs spoke out about their experience of domestic abuse. Bolsover MP Mark Fletcher described growing up with an abusive stepfather. Rosie Duffield MP, who herself is a survivor, also spoke powerfully.
Conor Monighan brings us the latest updates in human rights law
In the News:
A landmark piece of legislation was passed this week, with significant consequences for civil liberties. The Coronavirus Act 2020, which was passed in only 4 days, is designed to mitigate the impact of Covid-19.
It gives the police a number of powers, including:
A power to restrict events and shut down premises such as non-essential shops (Schedule 22).
The ability to forcibly isolate or detain individuals who are thought to be at risk of spreading Covid-19.
A reduction in the care duties imposed on Local Authorities.
The Act also produces a number of changes designed to help workers:
Employers can reclaim the cost of paying statutory sick pay from HMRC.
Employees can claim sick pay from the day they stop working, rather than there being a delay of three days before payments are made.
The Act has attracted criticism for the range of powers it grants to the executive, and the speed with which it was passed. To help address these concerns, the Act will automatically expire after two years. Matt Hancock MP, the Health Secretary, also said that the Act will be debated and voted on every six months. This commitment is reflected in s.98. A statement of compatibility with the ECHR has been made. Continue reading →
Conor Monighan brings us the latest updates in human rights law
In the News:
The Government’s ant-slavery tsar has severely criticised the government for failing to take action on child slavery. Dame Sara Thornton, who was appointed in 2019, said that the government was failing to make changes as promised.
Her concerns relate to the Independent Child Trafficking Guardian (ICTG) scheme, which is designed to give vulnerable children one-to-one support. Under the scheme, guardians assist children with matters ranging from GP appointments to dealing with social services. In 2016 ministers pledged to implement the scheme, but progress has since stalled.
Dame Sara said that she wrote to the Home Secretary in January outlining her concerns and highlighting the fact that the scheme only covers a third of the country. However, she has not received a response.
In a further development, Dame Sara Thornton has said that the power to intervene in child trafficking cases should be taken away from the Home Office. She argues that local authorities are much better placed to provide support. However, others have pointed out that councils lack the resources and power to adequately address child slavery.
The number of children referred to the Home Office as being potential victims of modern slavery appears to be rising. Over 2000 children were identified between September 2018 – 2019, representing a 66% rise on the previous year.
More from the Independent here and the Guardian here.
Sudesh Amman, the perpetrator of the Streatham knife attack (Credit: The Guardian)
The Government has announced that it will introduce emergency legislation to prevent terrorists from being automatically released after they have served half their sentence. Under the proposals, the parole board would have to authorise offenders’ release from prison. Individuals will need to have served two thirds of their sentence before being eligible.
The changes come after a knife attack in Streatham, London, in which a number of people were stabbed. The police and parole board were not able to prevent the automatic release of Sudesh Amman, the perpetrator of the attack.
Robert Buckland MP (the Justice Secretary) has confirmed that the proposals relate to current and previous offenders. There is also the possibility that further punishments may be proposed.
The changes have already been sharply criticised by some. Liberty has questioned whether the proposals are legal, because it means retrospectively altering people’s sentences. The BBC reports that Lord Carlile, the former independent reviewer of terrorist legislation, has suggested that the plans may be illegal.
Mr Buckland responded by arguing that the proposals relate to the ‘administration’ of the sentence, rather than altering its fundamental features (such as its length or type).
The government will try to pass the required legislation in six weeks in order to prevent the release of Mohammed Zahir Khan. Mr Khan, who is due to be released on the 28th February, was convicted after sharing extremist material and calling for the death of Shia Muslims.
The measures are designed to complement recent announcements. These have included making inmates undergo lie detector tests before they are released and recruiting probation officers that specialise in counter-terrorism.
It seems likely that a legal challenge will be forthcoming. Continue reading →
Conor Monighan brings us the latest updates in human rights law
In the News:
ICCSA, the Independent Inquiry into Child Sexual Abuse, published its report into protecting children who live outside the UK.
It described how there has been “extensive” sexual abuse of children by British nationals whilst abroad. Between 2013 – 2017, 361 UK nationals requested consular assistance between 2013 – 2017 for being arrested for child sex offences. The inquiry suggested this was likely to be a small proportion of offenders committing crimes abroad.
The report highlights the case of Gary Glitter, who was able to travel abroad and abuse vulnerable children even after he had been convicted. Glitter was later sentenced again for abusing two girls, aged 10 and 11, in Vietnam.
ICCSA concluded that travel bans should be imposed more frequently to prevent this behaviour. It noted that Australia bans registered sex offenders from travelling overseas. ICCSA’s report also argued that the burden of proof for imposing travel bans should be reduced, saying that the need for evidence is often overstated by courts and the police.
The inquiry described the global exploitation of children as worth an estimated £27.7 billion, with developing countries being particularly at risk.
The full report can be read here. More from the BBC here.
Conor Monighan brings us the latest updates in human rights law
Winston Trew and his wife, Hyacinth. Credit: The Guardian.
In the News:
Court of Appeal judges overturned the convictions of the ‘Oval Four’ after it was found that their sentences were based on evidence given by a corrupt police officer.
The ‘Oval Four’ refers to a group of black men who were arrested by officers claiming to have seen the men stealing Tube passengers’ handbags. The men were subsequently convicted in 1972 based solely on the basis of evidence given by those officers. None of the ‘victims’ appeared at the trial.
The case became a focus point for black rights and the treatment of BME people by the police. It was referred to the Criminal Cases Review Commission, which ultimately led to the successful appeal.
Whilst the convictions of three of the men were overturned, the fourth member of the ‘Oval Four’ unfortunately cannot be found.
The Lord Chief Justice, Lord Burnett, expressed “regret is that it has taken so long for this injustice to be remedied”. Lord Burnett also stated that there was “an accumulating body of evidence that points to the fundamental unreliability of evidence given by DS Ridgewell [the lead officer] … and others of this specialist group”.
This post, along with those before it, summarises some of the main points of interest arising from the ALBA Conference 2019.
‘Reith Lecture (Judicial Power) Response’ – Chair: Mrs. Justice Thornton; Speakers: Lord Dyson, Sir Stephen Laws, Prof Vernon Bogdanor, Prof Meg Russell, Lord Falconer of Thoroton QC
Credit: Robin S Taylor
A prestigious panel offered its response to Lord Sumption’s Reith Lectures, followed by a reply from Lord Sumption himself.
In his lectures for the BBC, Lord Sumption argued that judges have excessively increased their power and invaded into the political sphere. The Human Rights Act 1998 and Judicial Review attracted particular criticism.
Lord Sumption’s original lectures are available from the BBC here. A recording of the full discussion is available on LawPod here, so this post draws out some of the key points.
The Grenfell Tower Inquiry released its first report into the disaster. Its findings included:
The refurbishment of Grenfell tower broke building regulations because it used a mixture of combustible cladding. This was the main reason the fire spread.
Firefighters were let down by poor training, leadership, equipment and plans. Junior firefighters arriving at the scene were “faced with a situation for which they had not been properly prepared”.
The ‘stay put’ advice used by the London Fire Brigade was wrong, and cost lives.
The report recommends that national guidelines for evacuating high-rise flats are created. It also seeks for a programme of regular inspections of high-rise flats and lifts
The Commissioner of the London Fire Brigade, Dany Cotton, attracted particular criticism from the media. Ms Cotton had said that although she was saddened by the loss of life, there was nothing she would have done differently. Sir Martin Moore-Bick, the Chair of the Inquiry, described her as showing “remarkable insensitivity” and suggested this showed an inability to learn from the tragedy.
This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.
‘Practice and Procedure Update’ – Chair: Lord Justice Singh; Speakers: Catherine Dobson, Jo Clement, Christopher Knight
Catherine Dobson: Costs in Public Interest Litigation
Sir Rupert Jackson’s 2009 review of costs in civil litigation found that reform was required in relation to judicial review. This was because it was “not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved”. Whilst the government did not take up the proposal for qualified one-way costs shifting in judicial review, it did introduce a scheme for cost capping orders in judicial review. This change was the focus of Ms Dobson’s talk.
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