By: Dominic Ruck Keene

Challenge to Government policy of discharging hospital patients to care homes at start of pandemic partly upheld

3 May 2022 by

The High Court (Bean LJ and Garnham J) held in R (Gardner) v Secretary of State for Health [2022] EWHC 967 (Admin) that the Government’s March 2020 Discharge Policy and the April 2020 Admissions Guidance were unlawful to the extent that the policy set out in each document was irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.

About 20,000 residents of care homes in England died of COVID-19 during the first wave of the pandemic in 2020. Two of them were Michael Gibson, father of the First Claimant, and Donald Percival Maynard Harris, father of the Second Claimant. Mr Gibson died in a care home in Oxfordshire on 3 April 2020; Mr Harris in a care home in Hampshire on 1 May 2020.

The Issues

The Claimants sought declarations that particular policies of the Defendants (the Health Secretary, NHS England and Public Health England) during the relevant period constituted breaches of their fathers’ rights under the European Convention on Human Rights, or alternatively were unlawful and susceptible to judicial review on common law principles.

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Grace period in a time of Covid

30 November 2021 by

In R (Babbage) v The Secretary of State for the Home Department [2021] EWHC 2995 (Admin), the Claimant applied for judicial review, claiming that his immigration detention from 27 February 2020 to 29 April 2021 had been unlawful and/or that there was a public law error relating to the delay in the provision of s.4 accommodation. Soole J gave a potentially significant judgment concerning the ambit of the ‘grace period’ for locating s.4 Immigration and Asylum Act 1999 accommodation, i.e. accommodation provided to failed asylum seekers. The judge also made some apposite comments concerning the requirement for appropriate evidence in unlawful detention claims from the relevant decision maker. 

The Facts

The Claimant, a Zimbabwean national, was detained as Foreign National Offender and deportation proceedings   pursuant to the automatic deportation provisions in the UK Borders Act 2007 were commenced. He was detained under Immigration Act powers from September 2013 until December 2015 at which point his release was ordered by the court on the basis that there was no realistic prospect of returning him to Zimbabwe. During his initial detention he made an application for asylum which was subsequently refused, and he became appeal rights expired. Following a short custodial sentence imposed on 25 September 2019, the Claimant was detained again between 22 October and 4 December 2019, following which an Emergency Travel Document was agreed in principle by the Zimbabwean Embassy, although no ETD was ever subsequently issued. On 7 February 2020, the Claimant received a short custodial sentence for breach of a community order. Upon his release he was detained again under Immigration Act powers. On 25 May 2020 the Case Progression Panel recommended the Claimant’s release.  On 7 April 2021 the FTT granted bail in principle subject to the provision of s.4 accommodation. The SSHD granted s.4 accommodation on 15 April but was not provided with accommodation and released until 29 April 2021.

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High Court rejects ‘failure to remove’ abuse claim

14 June 2021 by

In a significant adverse judgment for child abuse claimants, DFX v Coventry City Council [2021] EWHC 1382 (QB), Mrs Justice Lambert rejected a claim brought by a number of claimants who alleged that the defendant council’s social services negligently delayed in instigating care proceedings and that had they been removed from the family home earlier they would have avoided serial abuse at the hands of their parents.

The factual background was that save for a hiatus between June 2001 and February 2002, the defendant’s social services department had been engaged with the claimants’ family throughout the 15 years from 1995 to 2010. Between 1996 and 1999, the first and second claimants were on the child protection register and, between March and September 2002, all of the claimants were on the register. In April 2009, the defendant issued care proceedings in the Coventry County Court. Initially, the removal of the children was sought under an emergency protection order. This was not successful. An interim order was in March 2010 removing all of the children, save for the eldest (a boy, by then aged 17), into foster care. In June 2010, full care orders were made and care plans removing the eight children from the family were approved by the court.

The claimants’ case was that they each suffered abuse, including sexual abuse, and neglect whilst in the care of their parents before their removal from the family in 2010. The claimants alleged that their parents were unfit to be parents and that this should have been obvious to the social workers involved with the family. Between 1992 and 1997, the father was convicted of four offences of indecency towards teenage girls. He had learning difficulties and had limited insight into his offending. The mother also had learning difficulties and it was alleged that she demonstrated repeatedly that she was either unable or disinclined to protect the claimants from their father or from predatory men who visited the home. The risks to the children were increased by the presence in the home of the maternal grandmother who lived with the family until March 2004. She also had learning difficulties and was associated with three “risky adult” men who visited the home. The home was often squalid and the children dirty and unkempt.

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Does the lockdown breach the right to freedom of religion?

30 November 2020 by

The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.

Article 9 ECHR provides as follows:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

This protects the right to public and communal worship where that is part of the belief held by an individual or group, and accordingly Article 9 is clearly engaged.

Nevertheless, when considering the legality of the lockdown it is relevant that the neither latest iteration of the Coronavirus Regulations, nor the previous version that imposed the earlier lockdown, in any way restrict the Article 9(1) right to hold a belief, or choices made regarding personal behaviour outside the context of places of worship.

Further, the European Court of Human Rights (ECtHR) held in Pavlides v Turkey [2013] (Application 9130/09) at [29] that Article 9, taken alone or in conjunction with Article 11, does

not bestow a right at large for applicants to gather to manifest their religious beliefs wherever they wish.

The issue is therefore whether any interference with Article 9 rights was or is both necessary to meet the pressing social need of protecting the health of infected and potentially infected people (the specified exemption from Article 9) and also proportionate.

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Immigration Bail policy found systemically unfair

30 July 2020 by

In three conjoined judicial reviews concerning the legality of the Home Secretary’s exercise of her power under paragraph 9 of Schedule 10 of the Immigration Act 2016 to provide accommodation to those who are granted immigration bail, Mr Justice Johnson held in R (Humnyntskyi) v SSHD [2020] EWHC 1912 (Admin) that each of the three claimants had been unlawfully denied such accommodation, and that the relevant policy was systemically unfair.

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Lockdown challenge — permission refused

7 July 2020 by

The Government will doubtless be relieved.

Mr Justice Lewis has refused permission to bring a judicial review in what is arguably the most comprehensive and wide-reaching challenge brought to date to the legality of the lockdown Regulations and the decision to stop providing education on school premises (save for the children of key workers) in R (Dolan and Ors) v Secretary of State for Health and Social Care and Secretary of State for Education [2020] EWHC 1786 (Admin).

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Dunn v FCO — the opening skirmishes

6 July 2020 by

In R (Dunn) v The Foreign Secretary and the Chief Constable of Northamptonshire [2020] EWHC 1620 (Admin) the Divisional Court dismissed two applications made in anticipation of the forthcoming rolled up judicial review arising out of the death of Harry Dunn.

Harry Dunn was killed when his motorcycle collided with a car being driven on the wrong side of the road by Mrs Anne Sacoolas, the wife of a member of the administrative and technical staff of the US Embassy based at RAF Croughton. The Claimants (Harry Dunn’s parents) sought to adduce expert evidence from a retired diplomat Sir Ivor Roberts, and also made an application for specific disclosure.

The Divisional Court summarised the background to the applications as being the judicial review of:-

  1. The decision made by the Foreign Secretary that Mrs Sacoolas had diplomatic immunity under the Vienna Convention on Diplomatic Relations;
  2. The allegedly unlawful obstruction by the Foreign Secretary of a criminal investigation by the Northamptonshire Police;
  3. The allegedly unlawful acceptance by the Northamptonshire Police of the advice of the Foreign Secretary or the Metropolitan Police that Mrs Sacoolas had diplomatic immunity;
  4. The alleged breach of the investigative duty under Article 2 ECHR as a result of the Foreign Secretary and the Northamptonshire Police’s error of law as to Mrs Sacoolas’s diplomatic immunity;
  5. The allegedly unlawful ceding of sovereignty over a military base in the UK without Parliamentary consent; and
  6. The alleged suspension of the laws of the land without Parliamentary consent through affording diplomatic immunity to family members of the relevant personnel.

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Leviathan Challenged — the lockdown is compliant with human rights law (Part Two)

11 May 2020 by

At present, the lockdown continues. Image: The Guardian

Previously on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights.

In the first of two response articlesLeo Davidson argued that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis.

In this article, Dominic Ruck Keene and Henry Tufnell argue that the challengers to the legislation have not shown that the measures adopted by the Government are disproportionate in the circumstances of the pandemic.

This is a summary of a paper published here and inevitably simplifies the detailed arguments and considerations within it.  The article represents the views of the authors alone.

Note: This post involves examination of the legal provisions that accompany the restrictions on movement of individuals announced by the Government. Legal scrutiny is important but should not be taken to question the requirement to follow the Regulations.


The inevitable has finally happened – a letter before action has been sent to the Health Secretary challenging the legality of the various restrictions that cumulatively make up the current Covid-19 lockdown within the UK through the mechanism of the Health Protection (Coronavirus) (England) Regulations 2020 (as amended) (‘the Regulations‘). The letter before action builds on the opinions previously outlined by Francis Hoar both on the UK Human Rights Blog and in a previous paper concerning the compatibility of the ‘lockdown’ with the ECHR. This post seeks to develop Leo Davidson’s earlier analysis of those arguments.

Here, we make the argument that there has not been a breach of all or any of the relevant ECHR rights, namely Articles 5 (right to liberty), 8 (right to private and family life), 9 (freedom of thought, conscience and religion), 11 (freedom of assembly and association) and 14 (prohibition on discrimination) and by Articles 1 (protection of property) and 2 (right to an education) of Protocol 1. Further, that there is in fact no deprivation of liberty under Article 5.

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Leviathan unshackled?

10 April 2020 by

The response to the Covid-19 pandemic by governments across the world has thrown into sharp relief the fact that at a time of crisis the institutions and functions of Nation States are still the key structures responsible for the most basic duty of protecting their citizens’ lives.  In the United Kingdom, the recent weeks have seen interventions by the Government in the economy and in the freedom of movement that are commonly seen as unparalleled in the post 1945 era.
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Home Secretary may not detain on basis of invalid deportation decision

3 April 2020 by

In R (DN – Rwanda) v Secretary of State for the Home Department [2020] UKSC 7, the Supreme Court held that the Claimant was entitled to purse a claim for unlawful detention on the basis that the decision to detain for the purposes of deportation could not be separated from the decision to deport. Accordingly, if the decision to deport was unlawful, then so inevitably was the decision to detain.


The Claimant had in 2000 been granted refugee status and indefinite leave to remain on the basis of a well founded fear of persecution as a Hutu if he was returned to Rwanda. He was subsequently convicted of a number of offences, the most significant of which was assisting unlawful entry of a non-EEA national (his niece) into the UK. He was subsequently sentenced to 18 months imprisonment. 

The decision to detain

Having completed the custodial element of his sentence, the Home Secretary decided to deport him on the basis of article 33(2) of the Refugee Convention which allows the expulsion of refugees “whom there are reasonable grounds for regarding as a danger to the security of the country”. It was said that he had been convicted of a “particularly serious crime” and that he “constituted a danger to the community”.

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Unlawful detention deemed even less graceful

4 February 2020 by

iraq war human rights compensation civilian Camp Bassa compensation damages conflict of laws international humanitarian law

In AC (Algeria) v Secretary of State for the Home Department [2020] EWCA Civ 36, the Court of Appeal gave a trenchant warning that once it ceases to be lawful to detain an individual, the ‘grace period’ allowed within which to make arrangements for release can only be a short period. Moreover, the reasons for which any such grace period is required will be be closely scrutinised by the courts.


Unsurprisingly, there continue to be a very significant number of judicial review and county court claims for unlawful detention brought by current and former immigration detainees. What is perhaps more interesting is that despite the relatively well-understood law governing the lawfulness of immigration detention the precise legal limits of the Home Secretary’s power to detain for immigration purposes continue to be tested and developed.

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Sale of arms to Saudi Arabia held to be based on flawed decision-making process

28 June 2019 by

London, UK. 11th July, 2016. Human rights campaigners protest against arms sales to Saudi Arabia outside the Defence and Security Organisation (DSO), the Government department responsible for arms export promotions.

In R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020, the Court of Appeal upheld a challenge to the lawfulness of the grant by the UK Government of export licences for the sale or transfer of arms or military equipment to Saudi Arabia for possible use in the conflict in Yemen.

The Court has overturned the decision of the Divisional Court, which was discussed on the Blog here.

The Campaign Against Arms Trade argued that there was a large body of evidence which demonstrates overwhelmingly that Saudi Arabia has committed repeated and serious breaches of international humanitarian law during the conflict in Yemen. CAAT claimed, in particular, that Saudi Arabia has committed indiscriminate or deliberate airstrikes against civilians, including airstrikes which have used “cluster” munitions, and which had targeted schools and medical facilities.

The Court of Appeal held that the decision-making process had been irrational, as it had not included an assessment as to whether there had been previous breaches of international humanitarian law in the past, without which there could not be a proper assessment of the risk of future breaches.

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No more reasonable doubt in suicide inquests

20 May 2019 by

In R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire v The Chief Coroner for England Wales [2019] EWCA Civ 809, the Court of Appeal conclusively held that the standard for proof for both short form and narrative conclusions concerning suicide was the civil balance of probabilities test, rather than the criminal beyond reasonable doubt.

The decision of the divisional court in R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire v The Chief Coroner for England Wales [2018] EWHC 1955(Admin) to the same effect marked a significant reversal of the commonly understood position that the criminal standard of proof applied – see Owain Thomas QC’s comment here.

Lord Justice Davis gave the only substantive judgment. He began by summarising that in the instant inquest concerning the death of a prisoner who had been found hanging, the Chief Coroner for Oxfordshire had followed the Chief Coroner’s Guidance No 17 and also the guidance contained within the Coroner’s Bench Book. The Coroner had accepted that the evidence on a ‘Galbraith plus’ basis was insufficient to enable a jury, properly instructed, to conclude to the criminal standard that the deceased had intended to take his own life.

However, having so ruled, the Coroner had further decided that it would not be appropriate simply to elicit an open conclusion from the jury and that they should be asked to ask a number of questions in order to elicit a narrative conclusion. In light of the way the questions were framed, the jury had for the purposes of their narrative conclusion, considered whether the deceased had intended fatally to hang himself by reference to the balance of probabilities. Their narrative conclusion included a determination that the deceased had intended to kill himself.

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Coronial Causation

18 March 2019 by

The Divisional Court in R (Chidlow) v HM Senior Coroner for Blackpool [2019] EWHC 581 has given a concise and authoritative judgment reiterating and summarising the current common law concerning causation in inquests. Given the ever increasing importance of inquests and their conclusions as preliminaries to civil litigation, as well the growing number of inquests being held into historical deaths, the judgment will doubtless be frequently cited over the coming months and years.

Mr Childlow brought the judicial review following the inquest into the death of his brother (Carl Bibby). Mr Bibby died from a cardiac arrest in circumstances where an ambulance had been called, but there were admitted delays in the ambulance attending. At the inquest, the jury heard evidence from a consultant in Critical Care & Emergency Medicine that had paramedics attended Mr Bibby before he suffered cardiac arrest, he would, on the balance of probabilities, have survived. Nevertheless, the coroner ruled that it was not safe to leave the issue of a causal link between the delay and Mr Bibby’s death to the jury. Mr Chidlow sought a declaration that the coroner acted unlawfully, an order quashing the record of inquest and an order that a fresh inquest be held before a different coroner.

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Now, a win for the Chagossians

4 March 2019 by

The International Court of Justice has given a near-unanimous opinion that the separation in 1965 of the Chagos Archipelago from the then British colony of Mauritius was contrary to the right of self determination, and that accordingly the de-colonisation of Mauritius by the United Kingdom had not been in accordance with international law. The ICJ held that Britain’s continued administration of the islands was an internationally wrongful act, which should cease as soon as possible.

This is the latest in a long series of cases concerning the Chagossian islanders, the last domestic one being Hoareau last month, which summarises decisions so far. Also see [120]-[130] of the ICJ’s opinion for the back-story.


The Chagos Archipelago consists of a number of islands and atolls in the Indian Ocean. The largest island is Diego Garcia, which accounts for more than half of the archipelago’s total land area.

Mauritius is located about 2,200 km south-west of the Chagos Archipelago. Between 1814 and 1965, the islands were administered by the United Kingdom as a dependency of the colony of Mauritius. In 1964, there were discussions between America and Britain regarding the use by the United States of certain British-owned islands in the Indian Ocean, in particular in establishing an American base on Diego Garcia.

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