Media By: Sapan Maini-Thompson


High Court rules on preliminary issues in challenge relating to alleged UK involvement in torture

9 July 2020 by

In R (Reprieve & Ors) v Prime Minister [2020] EWHC 1695 (Admin), the High Court made a preliminary ruling that Article 6(1) of the ECHR does not apply to the forthcoming judicial review of the Government’s decision not to establish a public inquiry into allegations that the UK intelligence services were involved in the torture, mistreatment and rendition of detainees in the aftermath of 9/11. It was further held that the claimants are not entitled to the level of disclosure of open material outlined in SSHD v AF (No 3) [2009].

Angus McCullough QC of 1 Crown Office Row was instructed as a Special Advocate in this case.


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Juries and Covid-19: protecting the right to a fair trial

7 May 2020 by

This article first appeared on the Justice Gap and the original post may be found here.

The iconic dome of the Old Bailey. Jury trials are presently suspended due to the COVID pandemic.

With Covid-19 having driven jury-trials to a grinding halt, it is no overstatement to suggest that justice itself has been suspended.

To remedy this situation, the Lord Chief Justice, Lord Burnett, last week told the BBC that it will be necessary to consider “radical measures” to enable jury trials to continue. To satisfy social distancing requirements in courtrooms, he said he would support reducing the number of jurors from twelve to seven. The historical precedent for this proposal is the Administration of Justice (Emergency Provisions) Act 1939 which similarly reduced the size of juries to accommodate for the pressures of national conscription during the Second World War.

Whilst this proposal is compelling on its practical merits, it could pose significant risks to a defendant’s right to a fair trial, with a reduced jury potentially affecting the procedural fairness of a trial.


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Government acted unlawfully in assisting USA to prosecute IS fighter — an extended look

14 April 2020 by

To what extent can the government be held liable for facilitating the imposition of the death penalty in a foreign state?

Since signing the Sixth Protocol to the European Convention in 1999, the UK has refused to extradite or deport persons to countries where they are facing criminal charges that carry the death penalty.

There is no judicial precedent, however, which prohibits the sharing of information relevant to a criminal prosecution in a non-abolitionist country. Therefore, in Elgizouli v Secretary of State for the Home Department [2020] UKSC 10, there were two questions before the Supreme Court:

1. Whether it is unlawful at common law for the Secretary of State to provide mutual legal assistance (in the form of evidence) that will facilitate the death penalty in a foreign state against the individual in respect of whom the evidence is sought; and

2. Whether and in what circumstances it is lawful under Part 3 of the Data Protection Act 2018, as interpreted in light of relevant provisions of European Union data protection law, for law enforcement authorities in the UK to transfer “personal data” to law enforcement authorities abroad for use in capital criminal proceedings.

In a judgment which showed tremendous sensitivity to the primacy of the legislature, a majority of the Supreme Court (with Lord Kerr dissenting) held the provision of mutual legal assistance (MLA) was not unlawful under the common law.

Nonetheless, the Court unanimously allowed the appeal on the second ground under Part 3 of the DPA 2018, overturning the ruling of the Divisional Court.


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Criminalising the possession of “terrorist propaganda”: a human rights analysis

21 January 2020 by

terrorist propaganda
Tributes left on London Bridge following the terror attack in June 2017 in which eight people were killed and many more injured.

The Home Office is proposing to legislate for a new criminal offence relating to the “possession of the most serious material glorifying or encouraging terrorism”.

This follows a suggestion made by the Chief Coroner, HHJ Mark Lucraft QC, in his report concerning the 2017 London Bridge terrorist attack. In his view, the lack of such an offence may sometimes prevent counter-terror police taking disruptive action against terror suspects, even when the extremist propaganda they possess is of the most offensive and shocking character. That propaganda might include, for instance, footage of sadistic violence.

The criminal law is ultimately concerned with the prevention of harm. The normative classification of harm with a political dimension, however, engages the right to freedom of thought under Article 10 of the European Convention on Human Rights, as protected under the Human Rights Act. To ensure a proper balance is struck between protecting the public and safeguarding civil liberties, any new offence ought to satisfy a three-limb test:

  1. It must provide a specific definition for the “most serious” category of materials which “glorify or encourage” terrorism. This should be supplemented with empirical guidance to ensure a high and objective threshold is set for criminal sanction.
  2. The mens rea requirement for the offence must be deliberate possession of harmful material, with the knowledge that said material glorifies or encourages terrorism. The standard of liability must be one of intention rather than recklessness or negligence. This would ensure that only harmful purposes are penalised.
  3. It must establish statutory defences to such possession on grounds of reasonable excuse and/or working in the public interest.

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Facial Recognition Technology: High Court gives judgment

12 September 2019 by

R (Bridges) v Chief Constable of South Wales Police and Secretary of State for the Home Department [2019] EWHC 2341 (Admin)

The High Court has dismissed an application for judicial review regarding the use of Automated Facial Recognition Technology (AFR) and its implications for privacy rights and data protection.

Haddon-Cave LJ and Swift J decided that the current legal regime is adequate to ensure the appropriate and non-arbitrary use of AFR in a free and civilised society. The Court also held that South Wales Police’s (SWP) use to date of AFR by has been consistent with the requirements of the Human Rights Act 1998 (HRA) and data protection legislation.

Nonetheless, periodic review is likely to be necessary. This was the first time any court in the world had considered AFR. This article analyses the judgement and explores possible avenues for appeal.


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LGBT relationships and the school curriculum: a human rights analysis

4 June 2019 by

Image: The Guardian

What is the scope of a school’s duty to accommodate the religion of a parent whose children attend its schools? From September 2020, it will become mandatory for “relationship education” which includes lessons about LGBT relationships to be taught in English primary schools under the Children and Social Work Act 2017. According to a petition by Muslim parents in Birmingham, however, such teaching contradicts the Islamic faith, thereby violating their freedom of religion.

The ongoing protests raise a host of questions about the boundaries between religious rights and the obligation of the state to promote social inclusion through universal and non-discriminatory education.

In this article, it will be argued that the rigorous approach taken by the Canadian courts to this issue should serve as a template for possible future consideration by the English courts and also that uneven standards in the statutory guidance for maintained and independent (including faith) schools undermine the equality duty in the UK.


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Recent ruling on Universal Credit

15 January 2019 by

R (Johnson, Woods, Barrett and Stewart) v SSWP CO/1552/2018 (11 January 2019) – read judgment

 

This case was brought by four social security claimants contesting the proper method of calculating the amount of universal credit payable to each claimant under the Universal Credit Regulations 2013. Singh LJ and Lewis J concluded that treating claimants as having “earned” twice as much as they do if they happen to be paid twice within one monthly assessment period is “odd in the extreme” [para 54] and “…. could be said to lead to nonsensical situations” [para 55].

The Legal Proceedings

The four claimants are employees who are paid monthly. As they receive their salaries on or around either the last working day or last banking day of the month, there are times when salaries payable in respect of two months are paid during one assessment period. This means that there were occasions on which the claimants were only allowed to retain a single amount of £192 by way of the work allowance from the combined two months’ salary. The work allowance is the amount of earnings claimants with children or with limited capability for work can keep in full before universal credit is reduced by a proportion (63%) of their earned income under Regulation 22 of the 2013 Regulations. This way of calculating the allowance resulted in fluctuating universal credit awards and “severe cash flow problems” [para 4] for the claimants.
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What is ‘substantial injustice’ for the purposes of a criminal case review?

27 November 2018 by

Sapan Maini-Thompson is an LLM Candidate at University College London.

On 14th November 2018 the Divisional Court gave judgment in a claim against the Criminal Cases Review Commission (CCRC) in Regina (Anthony Davies) v The Criminal Cases Review Commission . This case was brought on behalf of a prisoner who contended that his conviction had become unsafe following the decision of the Supreme Court in R v Jogee [2016] UKSC 8 which recast the mens rea requirements in joint enterprise cases. The court dismissed the claim in a judgment which involved analysis of how the principles in Jogee are applied, and the circumstances in which the CCRC should re-open an old conviction. Jim Duffy of 1 Crown Office Row was the Junior Counsel for the Claimant and instructed by David McCorkle of Duncan Lewis Solicitors.
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