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N3 & ZA v Secretary of State for the Home Department [2025] UKSC 6 concerned orders depriving two British people of their citizenship on national security grounds. The Defendant (initially) contended that to do so would not render them stateless, because they were dual British Bangladeshi nationals.
The use of deprivation orders in this context has been controversial, with critics across the political spectrum. Notably, writing in the Spectator, Jacob Rees-Mogg said of the Shamima Begum case:
“The ability to deprive people, who have a claim to another citizenship, of their British passport, creates two categories of Briton. Those with no right to another nationality are in the first-class carriage. Whatever they do, they cannot be made an exile or outlaw and expelled from the country. On the other hand, those who themselves came to the UK or whose parents did so are in the second-class carriage. They may be stripped of their citizenship even if they have never claimed another foreign nationality or even visited the country. This is a fundamentally racist policy as it denies the absolute Britishness of all those who are either recent immigrants themselves or their children.”
In the instant case, the deprivation orders were subsequently withdrawn. The Supreme Court has held that the effect of that withdrawal is that the Appellants are to be treated as having been British Citizens throughout.
This landmark decision was a successful appeal from the judgment of Dove J ([2023] EWHC 88 (Admin)) on the single issue of whether the National Crime Agency (“NCA”) misdirected itself when reaching the decision (i) not to investigate alleged offences under Part 7 of the Proceeds of Crime Act 2002 (“POCA”) and (ii) not to commence a civil recovery investigation under Part 5, in respect of certain cotton products brought into the UK alleged to be the product of forced labour and other human rights abuses.
The Appellant contended that when taking those decisions the Defendant had laboured under two fundamental misapprehensions, namely (i) that it is necessary to identify specific product as criminal property before commencing an investigation; and (ii) that the presence within the supply chain of a person who can rely on the exemption under section 329(2)(c) of POCA has the effect of “cleansing” criminal property so as to preclude its recovery, or the recovery of the proceeds of sale.
The court noted that it was well established that the decisions of an independent prosecutor or investigator would only be disturbed in highly exceptional circumstances: see R (Corner House Research) v Serious Fraud Office (2008) UKHL 60 at paragraphs 30-32. However, the discretion of decision makers was not unfettered; they must direct themselves correctly in law.
The challenge in this case was not advanced on Wednesbury principals. Rather, it was based on the alleged errors and misdirection in law. The Appellant contended that the Judge had nonetheless proceeded to deal with the matter on the basis that it was a rationality challenge. It was also contended that the Judge had reached the wrong conclusions insofar as he did address the substance of the challenge.
The NCA contended that it did not make the first error of law alleged, on a proper reading of the decision letter. It accepted the second error had been made but contended that it was immaterial and did not affect the substance or validity of its reasoning, namely that there was insufficient evidence from which to develop an investigation which had any prospect of bearing fruit. The Appellant accepted if that was the NCA’s reasoning, they would have been entitled to take that view.
Accordingly, this appeal turned on close analysis and the correct interpretation of the decision letter.
Sir James Eadie KC on behalf of the NCA frankly accepted that as a matter of law it would be wrong to refuse to commence an investigation under POCA because criminal property could not be identified at that time. Indeed, he contended that it would have been so obviously absurd to approach matters on the basis that that you needed to know the outcome of the investigation before taking a decision to commence it, it was highly improbable that the NCA had taken that approach.
Whilst recognising this as a powerful forensic point, the Court nonetheless concluded that, on the face of the decision letter, that was indeed the approach that was taken, and it was a clear misdirection in law.
Moreover, the Court did not agree that the second error within the decision letter was immaterial. That was the identification of a hypothetical individual within the supply chain who could rely on the exemption under section 329(2)(c) of POCA, which provides that a person will not commit an offence under section 329(1) “if he acquired or used or had possession of the property for adequate consideration”. In their view, this error appeared to play an important part in the decision-maker’s line of reasoning.
The judgment also noted that it was common ground there was a “diverse, substantial and growing body of evidence that serious human rights abuses are occurring in the XUAR cotton industry on a large scale”. Further that products derived from forced labour of the proceeds of sale could amount to “criminal property” for the purposes of Part 5 of POCA and “recoverable property” for the purposes of Part 7.
The Court agreed, and it seemed to be accepted by the parties, that the Judge had never directly identified the question whether the position expressed by the NCA in correspondence amount to an error of law.
It held that there was legitimate concern that the judgment endorsed the proposition that there is a need to establish criminal conduct or criminal property before an investigation under POCA can begin. In particular, the Court noted the submissions of the Intervenor “Spotlight on Corruption” that the judgment, if left undisturbed, would discourage the NCA, the police and other UK investigative bodies from commencing investigations into corruption, particularly where it occurs overseas, in the absence of concrete evidence of particular crimes carried out by particular persons. Spotlight also raised concerns at the suggestion that criminal liability or civil recovery was precluded where the proceeds of crime passed through several hands where adequate consideration was paid.
The Court confirmed that the proposition that, where the importer pays market value, they will not be tainted, was wrong in law. To the extent that the Judge accepted that at any point in a supply chain stretching many thousands of miles, the chain could be broken merely by using adequate consideration in any of the transactions involved, he was wrong to do so.
The Court held that there was force in the Appellant’s submission that the Judge had treated the challenge as if it were on the grounds of irrationality. More importantly, it was clear that the NCA had misdirected itself based on the two errors of law identified by the Appellant. The question of whether to carry out an investigation under Part 7 or part 5 of POCA was accordingly remitted to the NCA for reconsideration.
This judgment has significant implications for those trading in goods known or suspected to have been produced using forced labour or other human rights abuses, who may face investigation and prosecution even where adequate consideration has been paid. It has been hailed as a victory for those subjected to forced labour and human rights abuses.
The judgment in Vardy v Rooney [2022] EWHC 2017 can be foundHERE.
The case was a game of two other halves – Coleen Rooney, wife of Wayne, and Rebekah Vardy, wife of Jamie. Steyn J’s judgment left Rooney and her legal team punching the air and dousing themselves in champagne whilst Vardy cradled herself at the side of the pitch, reflecting on the moment she stepped up to take the stand, a moment that will give her nightmares for years. To be clear – I am speaking metaphorically, that didn’t actually happen. If there is one thing reading this judgment has taught me, it is not to make assumptions about whether you are going to be sued for libel, as some people have a really surprising take on the wisdom of doing that.
Leigh & Ors v (1) The Commissioner of Police of the Metropolis and (2) Secretary of State for Health and Social Care (Interested Party)[2022] EWHC 527
A year after the kidnap, rape and murder of Sarah Everard by serving Metropolitan Police officer Wayne Couzens, the Divisional Court has given its judgment on the MPS response to the proposed vigil for Ms Everard organised by #ReclaimTheseStreets on Clapham Common, near where she was last seen alive.
The aim of the vigil was to highlight risks to women’s safety and to campaign for a change in attitudes and responses to violence against women. However, it was at a time when Regulations imposed during the Covid-19 pandemic prohibited a gathering of more than 30 persons in a public outdoor place in a Tier 4 area such as London.
MPS would not sanction the plan for the vigil and it was cancelled (as discussed here). The Claimants alleged that this was because the Met had unlawfully thwarted the plan. The Court agreed.
The judgment is a comprehensive victory for the Claimants, hailed by them as a “victory for women” and an “absolute vindication”. It is also a landmark decision in the context of debate as to the impact of the Covid regulations on the fundamental rights and freedoms enshrined in primary legislation pursuant to the HRA. It contains a granular analysis of the requirements of the proportionality assessment to be undertaken in such cases. It has particular resonance given controversial changes to the way police are able to control protests currently being debated in parliament as part of the Police, Crime, Sentencing and Courts Bill.
Sarah Everard, a 33 year old woman living in London, was walking home from a friend’s house at around 9pm on Wednesday 3rd March 2021 when she disappeared without trace. In the days that followed, public appeals for information and press coverage ensured that the case was widely discussed. A profound sense of unease and desperation for her to be found alive was voiced by many, before the worst news was confirmed. Shockingly, a serving Metropolitan Police Officer has been charged with her kidnap and murder.
The most important thing to say about the case is contained in the statement of Sarah Everard’s family. They describe the sort of person that she was and what she meant to them.
One former colleague of Sarah Everard sharing her own memories of her added
she’s a real person, not some hanger on which to display your views about women.
But the case has prompted a wider discussion about how the risk of violence and harassment against women going about their ordinary business has been normalised and accepted as part of everyday life, such that calculations as to how to minimise that risk have become second nature to many. The MP Jess Phillips, speaking during a parliamentary debate to mark International Women’s Day said: “Killed women are not vanishingly rare. Killed women are common”,before reading the names of every woman killed in the UK in the last year where a man has been convicted or charged as the main perpetrator, that exercise taking more than four minutes.
Against this background, an organisation called “Reclaim These Streets” (“RTS”) stated that they wished to “channel the collective grief, outrage and sadness in our community” and decided to hold “a short gathering on Clapham Common, centred around a minute of silence to remember Sarah Everard and all women lost to violence”.The event was described as a “socially distanced vigil” having regard to the restrictions currently in place due to the Covid-19 pandemic. It was scheduled to take place at 6pm on Saturday 13 March 2021, close to where Sarah Everard was last seen alive.
Inside the main hall of the Royal Courts of Justice. The Court of Appeal undertook a detailed consideration of article 2 this year.
This three-part extended analysis discusses the important recent authorities on article 2 ECHR in the context of the provision of healthcare. Part 1 examined the leading case of Lopes de Sousa and part 2 considered how it has been interpreted and applied. In this final part, the latest decision of the Court of Appeal this year will be analysed and the overall trend in the law explained.
The two lines of Strasbourg authority considered in the two Fernandes cases are extensively cited by the Court of Appeal in the decision in Maguire. This case concerned the death of a patient with Down’s syndrome, learning difficulties and limited mobility who had lived in a residential care home and was subject to deprivation of liberty safeguards. In the days prior to her death she had been ill but had not cooperated with attempts to take her to hospital and the decision was taken to care for her at the home overnight. She deteriorated and was admitted to hospital where she later died. The cause was a perforated gastric ulcer, peritonitis and pneumonia.
The claimant argued that the circumstances of the death engaged the procedural obligation to hold an enhanced inquest under article 2. Whilst agreeing initially, and holding a jury inquest, the Coroner subsequently revisited his decision in light of the Divisional Court’s judgment in Parkinson. Having heard the evidence, he did not consider there was any arguable breach of the substantive operational duty under article 2 and hence the procedural duty was not triggered. A conclusion of natural causes was recorded with a short narrative description of events.
This three-part extended analysis discusses the important recent authorities on article 2 ECHR in the context of the provision of healthcare. Part 1 examined the leading case of Lopes de Sousa. In this part, the way that this case has been addressed will be considered.
Criticism of the approach in Lopes de Sousa
It will be apparent that the requirements for a breach of the substantive obligation under article 2 set by the Grand Chamber overlap to some extent, and it is difficult to understand how all the factors identified in denial of treatment cases can be cumulatively required, as opposed to being alternative bases for a violation in some instances. On any view, however, the overall effect is extremely restrictive and has been criticised as such, not least in a powerfully worded dissenting judgment from Judge Pinto de Albuquerque:
For a State to avoid international-law responsibility under the Convention, it is not sufficient for health-care activities to be circumscribed by a proper legislative, administrative and regulatory framework and for a supervisory mechanism to oversee the implementation of this framework, as the Court held in Powell […] By evading the question of the specific protection of the individual right of each patient and instead protecting health professionals in an untouchable legal bubble, Powell renders the Convention protection illusory for patients. Powell seeks a Convention that is for the few, the health professionals and their insurance companies, not for the many, the patients. This must be rejected outright. [64]
[…]
This case could have been a tipping point. The Grand Chamber did not want it to be that way. I regret that, by rejecting a purposive and principled reading of the Convention, the Court did not deliver full justice [94]
Judge Serghides, also dissenting, but in less trenchant terms, regretted the Grand Chamber had “missed a good opportunity to follow Elena Cojocaru and to abandon the Powell principle for good or distinguish the present case from that old decision.” [15]
This three-part extended analysis will discuss the important recent authorities on article 2 ECHR in the context of the provision of healthcare and identify important trends in the development of the law in this area.
Where article 2 of the Convention is invoked to allege inadequate provision of healthcare by the state, recent Strasbourg and domestic authority suggest an increasingly restrictive approach.
In a pithy parting shot to the Home Secretary, Lady Hale has given the unanimous judgment of the Supreme Court on the question of whether a person subject to a home curfew under immigration powers had been falsely imprisoned at common law and whether that concept should now be aligned with the concept of deprivation of liberty in article 5 of the ECHR. The Court decided the case against the defendant, as did every court below (the Blog covered the Court of Appeal’s decision here). The defendant had been required to pay the claimant £4,000.
False imprisonment at common law
The opening sentence sets the scene:
The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights.
The claimant had been subject to an overnight curfew, enforced by way of monitoring equipment and an electronic tag, under paragraph 2(5) of Schedule 3 of the Immigration Act 1971.
In two related judgments, Lieven J considered an application made by a Hospital Trust to withdraw treatment from a child receiving mechanical ventilation to keep him alive and an application for anonymity on behalf of his treating clinicians. The Trust succeeded in both.The decision has been upheld by the Court of Appeal.
The application to withdraw treatment was opposed by the parents. As always in such cases the circumstances were tragic and emotions ran high, which provides some context to the anonymity application.
The Chief Coroner has issued guidance following the judgment of the Divisional Court in R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London [2018] EWHC 969 (Admin) (“the AYBS Case”). The new Guidance No.28 can be found here.
The Divisional Court has ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs. The policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).
No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officer’s or coroners.
It has resulted in a blanket refusal of requests for expedition in circumstances where a religion stipulates that burial must take place within a short period of death. Such requests have arisen in cases where the family is waiting for the coroner to decide whether a post mortem examination is required.
R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – Read judgment
In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan. The Claimant’s father was killed during such an attack in March 2011.
The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law. The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]
“Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…” Thus concludes “Library poem”, penned by Children’s Laureate and Gruffalo creator Julia Donaldson, the latest high profile recruit to the campaign against planned library closures.
There have been a number of developments since we last blogged on this issue:
First, in R(Bailey And Others) V Brent London Borough Council & All Souls College (Interested Party) & Ehrc (Intervener) [2011] Ewca Civ 1586, The appellants failed to overturnthe dismissal of their application for judicial review of a local authority’s decision to close half its public libraries. See previous post here. The Court of Appeal dismissed the appeal on every ground, noting that the local authority’s decision to reduce its expenditure on public services was primarily one for it to make as a democratically elected body. Given the scale of the spending reductions required the decision was not unlawful.
R (Green and others) v GLOUCESTERSHIRE COUNTY COUNCIL & SOMERSET COUNTY COUNCIL [2011] EWHC 2687 (Admin) – Read judgment
In the administrative court, the decisions of two local authorities to withdraw funding for library services were held to be unlawful.
The court held that the withdrawal of a local library might indirectly discriminate against people with physical disabilities, women and the elderly. Both councils had purported to carry out equality impact assessments but the mere fact that such an assessment had been conducted did not demonstrate that due regard had been given to the public sector equality duty.
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The Divisional Court has ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs. The policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).
R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – 
“Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…” Thus concludes “Library poem”, penned by Children’s Laureate and Gruffalo creator 
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