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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 King’s Speech on Wednesday opened the first session of the new parliament, announcing 40 bills – the highest number announced in a King’s Speech since 2005. The bills announced included several relating to human rights, such as a Victims Bill, Mental Health Bill, and two draft bills – one on Race and Disability, predominantly concerning the right to equal pay, and another on Conversion Practices, seeking to ban conversion therapy. Several bills make provisions to combat violence against women and girls. A spokesperson for the Equality and Human Rights Commission responded to the announcements, welcoming the ‘positive developments for equality and human rights’, emphasising that the watchdog ‘stands ready to provide government and Parliament with advice as the detail of all the proposed legislation is developed’. In contrast, the organisation Human Rights Watch have suggested that the new Government’s vision ‘falls short’ in key areas, calling for ‘bolder action’ to secure better living standards for British citizens.
Last Tuesday, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act came into force, making Scotland the first UK country to incorporate the children’s rights charter into national law. While the UK Supreme Court ruled in 2021 that certain provisions of the original bill passed by the Scottish Parliament exceeded its legislative competence, subsequent amendments to the bill enabled a revised version to pass last December. Now that the Act is in force, all Scottish public authorities are under a direct legal duty to consider and promote children’s rights in policy decisions. The Act also improves children’s ability to enforce their rights in the courts. An announcement by the Cabinet Secretary for Social Justice reads: “The Act is a landmark piece of legislation that incorporates the UNCRC into Scots law, empowers our children and young people to claim their rights and will help to make Scotland the best place in the world to grow up”.
Following the new Government’s statement that the Rwanda Plan is ‘dead and buried’, £84 million of funding has been announced to ‘address the reasons for illegal migration’. The funding package will support projects in Africa and the Middle East in an attempt to ‘tackle illegal migration at source’. The announcement acknowledges the roots of illegal migration in conflict, climate change, and more, emphasising that the funding will be utilised to build resilience against such events. Initiatives are targeted towards skill-building, education, and employment. The funding will also support refugees hosted in countries within their home region with the aim of allowing their return home when conditions improve, as well as supporting reintegration of refugees in their home nations. Foreign Secretary David Lammy said: “Our package of up to £84 million will improve education, boost employment and build resilience to conflict and climate change across the Middle East and North Africa – to help bring down migration figures whilst improving lives for the world’s most vulnerable people.”
In Other News
As the Paris Olympics approach, the conversation regarding France’s hijab ban has resurfaced. Though originally announced in September 2023, the ban, prohibiting France’s athletes from sporting any form of religious headwear, has received fresh criticism in the form of a report published last week by Amnesty International. While Amélie Oudéa-Castéra – France’s Minister for Sport – stated that the ban has been imposed in line with the country’s principle of secularism, Amnesty have claimed the ban makes a ‘mockery’ of claims by the International Olympic Committee that Paris 2024 is the ‘first gender-equal Olympics’. The human rights organisation noted that the official Olympic Charter states that “the practice of sport is a human right. Every individual must have access to the practice of sport, without discrimination of any kind in respect of internationally recognised human rights within the remit of the Olympic Movement”, a sentiment they claim is in manifest contradiction with the hijab ban. “Amnesty International believes that when the world will be watching its athletes compete for medals and exercising their right to practice sport without discrimination, it should also cast a critical eye on the Olympics host country, which does not apply Olympic values to everyone”.
In the Courts
On Friday, the International Court of Justice published its Advisory Opinion in respect of the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory. The Court made several seminal conclusions, finding that:
Israel’s presence in the Occupied Territories is unlawful;
That Israel is under an obligation to therefore end its unlawful presence as soon as is possible;
That Israel is obliged cease all settlement activities and evacuate all settlers;
That Israel is obliged to make reparations for any damage eventuating from its unlawful presence;
And that all other States, alongside international organisations, are obliged not to assist the ongoing presence of Israel in the Occupied Territories, nor recognise it as legal.
The Court recalled its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, which found that Israeli settlements were established and maintained in breach of Israel’s international legal obligations. The Court expressed grave concerns that in the years since, the Israeli settlement policy has continued to expand. The Court noted that a variety of Israeli legislation and administrative measures relating to its occupation treated Palestinians differently without justification or legitimate aim. This finding led the Court to conclude that the Israeli regime in the Occupied Palestinian Territories constituted ‘systemic discrimination based on, inter alia, race, religion or ethnic origin’ in violation of a variety of international conventions. Vital to the Court’s determination was the finding of the ‘prolonged deprivation of the Palestinian people of their right to self-determination’, a right the Court viewed as ‘fundamental’. However, Judges Tomka, Abraham, and Aurescu issued a joint opinion stating that they could see ‘no legal connection whatsoever’ between the Palestinian right to self-determination over the territories and the extension of the illegality of Israel’s occupation. Judge Sebutinde’s dissenting opinion was the subject of discussion by legal commentator Joshua Rozenberg, who has expressed the view that litigation ‘will not bring peace to the Middle East’.
The European Court of Human Rights ruled on Thursday that the failure of Latvian authorities to bring charges for a homophobic hate crime constituted a breach of ECHR Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life) in conjunction with Article 14 (prohibition of discrimination). Given that the assailant had admitted to police the use of homophobic slurs and personal homophobic beliefs that ‘clearly’ motivated the attack, the Court found that the proceedings brought against him, culminating only in a ‘manifestly lenient fine’, breached Mr Hanov’s human rights. The Court expressed the view that the actions of the Latvian authorities ‘fostered a sense of impunity for hate-motivated offences. […] Failure to address such incidents can normalise hostility towards LGBTI individuals, perpetuate a culture of intolerance and discrimination and encourage further acts of a similar nature’.
As a new Chief Coroner takes up the reins, Jim Duffy is joined by 1COR colleagues Richard Mumford and Lance Baynham to discuss the challenges facing the coronial system today. They look at recent cases on Article 2 ECHR and the ordering of fresh inquests, before reflecting on how the process works for those who come into contact with it.
Since coming into power in the recent general election, PM Keir Starmer has announced that the Rwanda asylum scheme is “dead and buried”. The announcement was made as three claimants, known only as SM, SY and YXY, were challenging their imminent removal to Rwanda on a flight scheduled for 24 July. On 09 July, the High Court held a case management hearing in which barristers acting for the government confirmed that no removal flights to Rwanda were planned and the three individuals’ asylum claims would be processed in the UK. However, the barristers did not confirm the government’s wider position on the Rwanda policy, and the impact on asylum seekers whose claims were classified as inadmissible for processing in the UK under the Rwanda policy. The UN High Commissioner for Refugees has sent a list of recommendations to the new government. These include repealing the Illegal Migration Act 2023, resisting the “externalisation” of asylum processing to third countries, and streamlining the asylum process to tackle the backlog of asylum claims.
Despite media speculation and the urging of leading lawyers, the new government has not announced whether or not it will continue the UK government’s intervention in the International Criminal Court (ICC)’s decision regarding arrest warrants against Israeli PM Benjamin Netanyahu and Minister of Defence Yoav Gallant. The UK government seeks to argue that the ICC does not have jurisdiction over Israeli individuals because the Oslo Accords state that Palestine does not have criminal jurisdiction over Israeli individuals and so cannot delegate criminal jurisdiction over Israeli individuals to the ICC. The UK government does not recognise the State of Palestine. The ICC has given the UK government until 26 July to provide their full submissions.
In international news
Amnesty International has published a report analysing what it argues is a decline in protest rights in 21 European countries. The report argues that many European countries have been cracking down on protest rights through “the passing of repressive laws, establishment of onerous procedural obligations, imposition of arbitrary or discriminatory restrictions, racist policing and the use of unnecessary or excessive force against peaceful protestors, arbitrary interferences including the arrest, prosecution and imprisonment of protesters, as well as increasing use of invasive surveillance technology”. Amnesty International comments that those most impacted by these measures are groups already facing discrimination in society due to, among other things, race, religion or immigration status.
In the courts
The High Court has allowed University of Birmingham and University of Nottingham to evict Palestine solidarity protesters who had set up camps on university campuses. The court held that the protesters have no real prospect of establishing discrimination on the grounds of their beliefs, a breach of the public sector equality duty, a breach of section 43 Education (No.2) Act 1986 (which ensures freedom of speech in universities), or European Convention on Human Rights (ECHR) rights. The court held that there were many other ways in which the students could have chosen to protest and so the severity of the impact on their rights by removing the encampment “does not (by a significant margin) come anywhere close to outweighing the importance of the objective of the University being able to regain possession of its own land”. The court therefore gave the universities a summary possession order, which allows them to evict the protest camps without a full trial.
In W.W. v Poland, the European Court of Human Rights (ECtHR) held that the refusal to allow a transgender person to continue hormone therapy in prison amounted to a violation of her Article 8 right to a private life. Ms W.W. is a trans woman who was undergoing a gender reassignment procedure since 2019 while detained in prison. When she was transferred to a different prison in 2020, the head of the prison’s medical unit refused to allow her to continue hormone therapy without additional medical tests and failed to organise prompt appointments with specialist doctors. The ECtHR held that the freedom to define one’s gender identity is “one of the most basic essentials of self-determination” and the prison official’s requirement that Ms W.W. should undergo further consultations, after she had already started a beneficial course of treatment, was disproportionate in the circumstances. In the UK, the advocacy group TransActual is currently challenging the emergency ban on the use of puberty blockers as medication for trans children, arguing that the ban was based on the Secretary of State’s personal view rather than expert or medical evidence.
The impact of the Supreme Court’s decision in R (Finch) v Surrey County Council & Ors is already being felt. In ongoing litigation regarding the approval of a coal mine in Whitehaven, Cumbria, the Secretary of State for Housing, Communities and Local Government conceded the legal challenges. The Secretary of State admitted that an error was made as the downstream emissions caused by the inevitable burning of the extracted coal were not factored into the Environmental Impact Assessment. However, litigation may continue as the other defendant in the case, West Cumbria Mining, does not agree with the Secretary of State’s position.
An investigation by Liberty Investigates and Metro found that a number of UK universities have been providing intelligence on pro-Palestine student protesters to the police. The investigation described “varying degrees of cooperation and intelligence sharing” in correspondence between universities and police forces. A manager at Queen Mary University of London wrote to the police that “[w]e are monitoring closely the plans of the students in the encampment and will provide you with the details when they are known”. Universities named in the investigation said they were committed to protecting and encouraging free speech.
Student protesters are also facing challenges in the courts, with multiple universities seeking possession orders in order to evict pro-Palestine encampments from campus grounds. The University of Birmingham sought a possession order on Thursday. The defendant student argued that granting the University possession would be unlawful because it would discriminate against her protected philosophical beliefs and interfere with her rights to freedom of speech and freedom of assembly. The University argued that the occupation is not a mere expression of opinion, but is designed to interfere with the University’s activities, citing over £250,000 of costs incurred as a consequence of the encampment. Judgment has been reserved until a later date.
In other news, The Undercover Policing Inquiry started ‘Tranche 2’ hearings on Monday, entering a phase of the inquiry which covers the conduct and management of the Special Demonstration Squad between 1983 and 1992. The Metropolitan Police Service acknowledged wrongdoing during this period in its opening statement. The MPS described the fact that at least nine undercover officers engaged in “deceitful sexual relationships” during their deployments as “completely unacceptable” and apologised “for these failings and for the wider culture of sexism and misogyny which allowed them to happen”. The MPS also acknowledged that there was “unnecessary reporting” on groups which “did not present any risk of serious public disorder and were not engaged in any criminal or subversive activity”, including groups which were campaigning for police accountability.
In international news
On Tuesday the President of Sierra Leone, Julius Maada Bio, signed the Prohibition of Child Marriage Act into law, banning marriage with a child under 18. In 2021 UNICEF reported that 30% of women and girls in Sierra Leone married in childhood. Sierra Leone’s First Lady Fatima Bio, who was a victim of child marriage and championed the bill, described how child marriage “destroys [children] before they even know who they are”. She said there was no excuse not to comply with the law. The law has been welcomed by human rights campaigners as a historic step forward for the rights of the child inthe country.
In the courts
The US Supreme Court ruled by a 6-3 majority on Monday that a president has immunity from criminal prosecution for “official acts” when carrying out their constitutional powers. They remain liable for private conduct. Justice Roberts delivered the majority judgment, writing that the President must be able to “execute the duties of his office fearlessly and fairly” without the threat of prosecution. In a strong dissenting judgment Justice Sotomayor wrote that the president “is now a king above the law”. US President Joe Biden described the decision as setting a “dangerous precedent” which undermined the rule of law.
The Supreme Court of Kansas ruled on Friday that a state law banning the most common second-trimester abortion procedure violated the state’s constitution. Delivering the decision for the majority, Justice Eric Rosen wrote that the court stood by its 2019 decision that “the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy”. Several nearby states including Texas, Oklahoma and Missouri banned abortion following the US Supreme Court’s decision to overturn the historic ruling in Roe v Wade, removing a right to abortion under the US Constitution. Kansas has become a destination where women living in those states can travel to obtain an abortion.
One of the most striking appointments to Sir Keir Starmer’s administration has been that of Richard Hermer KC to the office of Attorney General. In that capacity, as the Government’s senior Law Officer, Hermer will attend Cabinet. He is a hugely respected senior barrister, who has never been a member of Parliament having spent his professional life in independent practice with a formidable and distinguished legal career. He is extremely well placed to give the Government independent legal advice of the highest quality, as one would hope for from the AG.
Hermer’s appointment has been widely applauded, giving tangible reassurance of the new Prime Minister’s genuine commitment to the rule of law. These plaudits include the following generous tribute from Lord Wolfson KC, a Conservative peer and former Justice Minster (as well as an eminent and respected barrister himself).
Hermer’s experience at the Bar includes many cases involving closed material procedures – CMPs, the controversial system of “secret justice” about which I have written extensively on this blog, from my perspective a Special Advocate operating within that system. For readers with the stomach for it, the dismal story of their neglect can be charted through these articles.
The new AG therefore knows at first hand the importance, challenges, and frustrations of cases that are subject to CMPs. As Attorney General he is now responsible for the recruitment and formal appointment of Special Advocates, whilst the Secretary of State for Justice has the duty to provide an effective system in which we operate, to minimise the unfairness that is inherent in CMPs.
Together with other Special Advocates I had some positive – but ultimately unproductive – engagement with Hermer’s immediate predecessor as Attorney, Victoria Prentis, and her colleague as Lord Chancellor, Alex Chalk. It was disappointing that between them they failed to implement any concrete steps to address the long-standing issues around CMPs, including since the Ouseley review was published in November 2022. This has driven me, and many other Special Advocate colleagues, to decline to take any new appointments – a hard decision which we have each come to with reluctance.
On 1 July 2024 (a few days before the General Election) almost every individual on the current list of Special Advocates, including in Northern Ireland, wrote to the Attorney General to express our disappointment at the Government’s response to the Ouseley review, published on the last day before the dissolution of Parliament, in continuing failure to address these issues, including proper support for Special Advocates (most urgently in Northern Ireland) and a closed judgment database. The Government did not consult the Special Advocates in formulating its response, despite repeated encouragement to do so. They rejected 4 out of 20 recommendations from the Ouseley report, including a significant one in relation to the attendance of Special Advocates at mediation and other ADR procedures, without which Ouseley indicated there was “potential for unfairness”. The Government’s rejection is on a basis that seems wrong and unjustifiable. Our recent letter to the AG concluded:
“All those of us who had felt driven to decline new appointments remain of that position and will keep that under review. Those of us who had not reached the point of refusing new appointments are also keeping our positions under close review in the light of further developments, including action or inaction by you and the Lord Chancellor (or your successors in Government) following the General Election. Only one of us signing this letter is not planning to keep their position under review, while fully sharing the concerns of all of us that are set out above.“
Our letter should be on the new Attorney’s desk. Facing the new Government are many larger-scale and more intractable problems with the justice system than CMPs. The proper support for these procedures. and the Special Advocates that are components essential to their functioning, should be one of the easiest issues, in both practical and financial terms, for the incoming regime to address without further delay.
I enthusiastically join in the warm congratulations to Hermer and his colleague in Cabinet, Secretary of State for Justice Shabana Mahmood MP, on their appointments. I hope that they will re-visit their predecessors’ (long-delayed) response to the (long-delayed) Ouseley review to ensure that effective action is now taken urgently. I stand ready with other Special Advocates to help them to achieve that.
His Honor Judge Mark Lucraft KC, Chief Coroner of England & Wales from 2016-2020 endorsed the guide saying the following:
“This important guide equips practitioners and coroners to recognise, raise and investigate issues of race or racism when they arise, sensitively and without reticence. It is an invaluable resource, not only for promoting racial justice, but for improving fact finding, increasing racial awareness, and providing better representation to families.”
A detailed summary of the issues and the facts in this case can be found in the Supreme Court’s Press Release. The report below gives a very short account of these followed by a focus on the majority and dissenting judgments. I quote Lord Sales in some detail as the concerns expressed in his dissent will only prevail if Parliament were to legislate for them to do so.
Legal and factual background
In December 2018, the second respondent, Horse Hill Developments Ltd, sought planning permission from the first respondent, Surrey County Council (“the Council”), to retain and expand an existing onshore oil well site and to drill for four new wells, enabling the production of hydrocarbons from six wells over a period of 25 years. The environmental impact assessment for the project had to be carried out under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (which implemented the Directive 2011/92 EU).
The Council considered the environmental impacts of “the direct releases of greenhouse gases from with the well site boundary resulting from the site’s construction, production, decommissioning and subsequent restoration over the lifetime of the proposed development.” However, it did not assess the environmental impacts of the downstream greenhouse gas emissions that would inevitably result when the oil extracted from the development site was later refined and then used, for example, as fuel. The developer argued that, as regards the impact of the project on climate, the scope of the EIA should be confined to the direct releases of greenhouse gases from within the well site boundary during the lifetime of the project; and that the EIA need not include an assessment of the greenhouse gas emissions that would occur when the oil extracted from the wells was ultimately burnt elsewhere as fuel. The council accepted this approach and granted planning permission for the development on 27 September 2019. The appellant, acting on behalf of a local action group, applied for judicial review of the Council’s decision. Her claim was unsuccessful before the High Court and the Court of Appeal. This was her appeal to the Supreme Court
The question that the Court had to decide was this. Was it unlawful for the Council not to require the environmental impact assessment for a project of crude oil extraction for commercial purposes to include an assessment of the impacts of downstream greenhouse gas emissions resulting from the eventual use of the refined products of the extracted oil?
Julian Assange has been released from HM Prison Belmarsh after accepting a plea deal with American prosecutors. Assange pleaded guilty to one charge of conspiracy to violate the Espionage Act, for communicating with whistleblower Chelsea Manning and receiving and publishing classified information regarding Guantanamo Bay, the Afghan and Iraq war, and US diplomatic cables. After being released from Belmarsh, he travelled to the North Mariana Islands to enter his plea, before travelling on to Australia now a free man. NGOs and media figures have voiced concerns that Assange’s guilty plea will have a chilling effect on journalists.
This week saw multiple international courts react to Russia’s invasion and occupation of Ukraine. International Criminal Court (ICC) judges have issued arrest warrants against Russian officials Sergei Kuzhugetovich Shoigu (former Minister of Defence) and Valery Vasilyevich Gerasimov (Chief of the General Staff of the Armed Forces and First Deputy Minister of Defence). The ICC judges found that there are reasonable grounds to believe that they bear individual criminal responsibility for crimes including directing attacks at civilian objectives, causing excessive incidental harm to civilians or damage to civilian objects and inhumane acts. The European Court of Human Rights (ECtHR) found that Russia is responsible for a wide variety of human rights abuses in Crimea, a Ukrainian territory annexed by Russia in 2014. The judgment deals with events that took place before the full scale invasion in 2022, and chronicles a systematic campaign of repression against Ukrainian and Crimean Tatar civil society. This includes the transfer of political prisoners to Russia and restrictions on Ukrainian language and culture. The ECtHR unanimously found breaches of articles 2, 3, 5, 6, 8, 9, 10, 11, articles 1 and 2 of Protocol 1, articles 2 of Protocol 4, and articles 14 and 18.
The Court of Appeal has held that the National Crime Agency (NCA) misdirected itself in law when deciding not to investigate whether imported cotton products from the Xinjiang Uyghur Autonomous Region (XUAR) were the product of forced labour or other human rights abuses committed by China. The Uyghurs are a Turkic Muslim minority subject to intense repression in China, which some argue amounts to a genocide(this is disputed by the UK government). The court recognised that there is a consensus regarding widespread exploitation and abuse within China’s cotton production and that 85% of Chinese cotton comes from XUAR. The court held that the NCA was wrong to state that it could not start an investigation unless a specific consignment of cotton produced through human rights abuses was identified. Furthermore, the NCA was wrong to state that providing “adequate consideration” for goods could prevent goods imported into the UK from constituting criminal property.
The US Supreme Court has struck down the Chevron v Natural Resources Defense Council, one of the most influential precedents in US administrative law. The “Chevron doctrine” was a rule of statutory interpretation; it stated that where Congress did not directly address the meaning of a statute, a court was required to defer to the administrative agencies’ interpretation as long as it was reasonable. In the leading judgment, Judge Roberts stated that it is the role of the courts to “decide legal questions by applying their own judgment” and “it thus remains the responsibility of the court to decide whether the law means what the agency says”. Therefore, this case represents a big shift in the balance of power from the executive to the judiciary.
On Thursday, representatives from Liberty, Amnesty International, Human Rights Watch, and Inclusion London addressed journalists at a briefing in Westminster to call for politicians and the public to stay alert to human rights issues over the election campaign period. Warnings were given about the diminution in worker’s and migrant’s rights, among others, in recent years. Calls were made by multiple representatives for closer scrutiny of the potential implications of challenges to human rights frameworks such as the HRA and ECHR. “Human rights in the UK have too long been cast in political debate as an obstacle”, said Sacha Deshmukh, Chief Executive of Amnesty International. “In reality, they can provide solutions to the problems we face here, at home, and on the global stage”.
Several anti-racism campaigning groups, led by Action for Race Equality, published a manifesto last Friday in anticipation of Windrush Day calling for immediate reform to the Windrush Generation documentation scheme, claiming that the ongoing backlog is worsening the ‘unconscionable’ trauma inflicted upon the Windrush Generation. Government figures suggest over 50,000 individuals remain eligible for the scheme. Saturday saw the sixth annual celebration of Windrush Day, marking 76 years since the arrival of the HMT Empire Windrush in 1948 which carried hundreds of passengers arriving to the UK from the Caribbean. The Windrush Generation had been invited to Britain in an attempt to help rebuild the post-war economy. In April 2018, the ‘Windrush scandal’ begun when it emerged that the Home Office had kept no formal records of Commonwealth individuals living in the UK with indefinite leave to remain granted under the Immigration Act 1971. This had resulted in those affected being unable to prove their legal migration status, thus unable to access healthcare, housing, employment and more. Many were deported or threatened with deportation. Windrush Day celebrates the legacy of these individuals in the UK and the contributions they have made to British society. The event was marked on Saturday with exhibitions, block parties, and other festivities.
In Other News
Last Wednesday, the UN Office for Human Rights published a thematic report finding that Israeli airstrikes in Gaza might have ‘systematically violated’ several of the ‘fundamental principles of international humanitarian law on the conduct of hostilities’. ‘When committed intentionally’, the report states, ‘such violations may amount to war crimes’. Six events were investigated as emblematic incidents of attack since October 7th. The events were assessed across the principles of distinction, proportionality, and precautions in attack, finding breaches of all. ‘The scale of human death and destruction wrought by Israel’s bombing of Gaza since 7 October has been immense’, the report states. The report calls for immediate, thorough, and transparent investigations into all allegations of violations of international human rights law, noting that the time already elapsed since several of the incidents assessed ‘calls into serious question the compliance of [Israeli Government] processes with international obligations to ensure prompt and effective accountability’. Israeli representatives have condemned the report. Israel’s mission to the UN have stated they believe “the only objective of this thematic report is to lambast and single-out Israel, while further shielding Hamas terrorists in Gaza”.
Last Tuesday, Thailand’s Senate passed a marriage equality bill by an overwhelming majority during an ad-hoc parliamentary session, the bill garnering the approval of 130 out of 152 members. The country will become the first in Southeast Asia to recognise same-sex marriage and the third Asian jurisdiction after Taiwan and Nepal. The bill will become effective following royal assent and 120 days after publication in the Government Gazette. The bill will amend Thailand’s Civil and Commercial Code to replace gendered words like ‘man’ and ‘woman’ with gender neutral alternatives such as ‘individual’. Mookdapa Yangyuenpradorn, representative for the human rights organisation Fortify Rights, has called the bill’s passage a “triumph for justice and human rights”. She added that “marriage equality is fundamental to human dignity, and it is essential that Thailand protects these rights without delay or discrimination.”
In the Courts
The Namibia High Court has held that the common law offences of sodomy and unnatural sexual offences are unconstitutional as they amount to unjustified discrimination against the LGBT community. As such, the impugned laws have been declared invalid. In June 2022, Namibian LGBT+ activist Friedel Dausab launched a legal challenge to the constitutionality of Namibia’s anti-homosexuality laws. The laws criminalise same-sex sexual activity – the campaign sought to see the laws held unconstitutional and to overturn the convictions made under them. In May 2023, the Namibian Supreme Court recognised same-sex marriages lawfully entered abroad, after which the parliament passed bills restricting marriage to those of opposite sex. Support or promotion of same-sex unions was criminalised with up to 6 years imprisonment. Dausab has celebrated the judgment, stating: “I feel elated. I’m so happy. This really is a landmark judgment, not just for me, but for our democracy.”
In this series, Lucy McCann and Rajkiran Arhestey speak to Lady Justice Whipple, Sally Smith KC, Clodagh Bradley KC, Cara Guthrie, Judith Rogerson, Isabel McArdle, Emma-Louise Fenelon and Chloe Turvill about their experiences, in the hope of drawing out some key reflections and continuing the conversation about gender and the profession.
In this episode, Lucy and Kiran discuss a number of issues relating to parenthood, including pregnancy, maternity and paternity leave, childcare, gendered assumptions about caring and family life.
A report published by the Runnymede Trust on Monday found that black people, and especially black children, are subject to disproportionate rates of strip search across all police forces in England and Wales. The report analysed Home Office data and concluded that black children are 6.5 times more likely to be subject to a strip search than white children, and black adults 4.7 times more likely than white adults. The report described how strip searching “can be severely traumatic and humiliating, particularly for children, with long lasting effects such as anxiety, depression and lower educational attainment”. The Home Office recently a conducted a consultation on proposed reforms to police codes of practice which would create additional protections for children subjected to strip searches, noting that “too often… safeguarding and child protection have not been sufficiently prioritised”. The government’s response is due to be published later this year.
It was the seventh anniversary of the Grenfell Tower fire on Friday. Campaigners from the Infected Blood scandal and the COVID-19 Bereaved Families group joined Grenfell United to call for a national body to scrutinise the implementation of recommendations made following inquests and inquiries. Campaigners said that the lack of oversight prevents lessons being learnt that could prevent future deaths, and argued that if recommendations made by a coroner following the 2009 Lakanal House fire had been implemented, the Grenfell Tower fire might have been avoided. The Grenfell Tower Inquiry’s Phase 2 Report will be published on 4 September.
In international news
Lord Sumption warned that Hong Kong is “slowly becoming a totalitarian state” in an opinion piece explaining his decision to resign from the territory’s final court of appeal. Lord Sumption explained that the “oppressive atmosphere” and challenges such as the “illiberal” national security legislation meant he felt it was no longer realistic to hope that he could help sustain the rule of law as an overseas judge. The government of Hong Kong issued a statement refuting Lord Summation’s comments, stating that any claims of political pressure on judges were “totally baseless”.
In the courts
On Tuesday the European Court of Human Rights handed down judgment in Nealon and Hallam v United Kingdom. Nealon and Hallam spent 17 and 7 years in prison respectively before their convictions were quashed by the Court of Appeal. The two were denied compensation for the time they had spent in prison because they could not prove their innocence beyond all reasonable doubt. The pair argued that once their convictions had been overturned, they should be presumed innocent and that the compensation scheme therefore violated their Article 6 rights. The Court found that Article 6 was engaged, but a majority of 12 found that that the UK’s compensation rules did not breach the presumption of innocence in practice. The Court held that requiring an applicant to show beyond all reasonable doubt that they did not commit an offence was not tantamount to a positive finding that they did the commit the offence. Further, the majority commented that it was not the Court’s role to “determine how States should translate into material terms the moral obligation they might owe to persons who had been wrongfully convicted”. A dissenting judgment of five judges noted that the test in the UK was “virtually insurmountable” and revealed a “highly undesirable attitude towards the presumption of innocence”.
This article was first published in Edition 33 of the Journal of Environmental Law and Management. It is reproduced here with the kind permission of the editors at Lawtext Publishing Limited
On Monday 9 April 2024 the Strasbourg Court handed down judgment in three cases involving climate change: Carême v France (ECHR no 7189/21), Duarte Agostinho v Portugal and 32 others ( ECHR no 39371/20), and Verein Klimaseniorinnen v Switzerland [2024] ECHR 304, no 53600/20.
Interestingly, shortly before the Strasbourg judges had reached their decision in these three cases, the New Zealand Supreme Court considered an application for strike-out of a challenge to a number of carbon-emitting businesses based on the tort of public nuisance as well as a new form of action, that involved a duty to cease materially contributing damage to the climate system: Michael John Smith (appellant) v Fronterra Co-operative group Ltd and Others [2024] NZSC 5. I will come back to this judgment later in this article.
First, we turn to the more recent Strasbourg cases. Each of these cases was examined by the same composition of the Grand Chamber, and each raised unprecedented issues before the Court.The particular nature of the problems arising from climate change in terms of the Convention issues has not so far been addressed in the Court’s case law. I will concentrate on the one successful application, Verein Klimaseniorinnen v Switzerland. Both Carême and Duarte Agostinho failed with their applications on procedural grounds; most notably, the Duarte Agostinho application was dismissed due to a failure to exhaust domestic remedies.
In Verein Klimaseniorinnen, some female senior citizens and a representative organisation (Klimaseniorinnen) argued that the impact of global warming on their health breached a number of Articles of the ECHR. The Strasbourg Court was satisfied in this instance that they had exhausted their local remedies, although it found that the individual applicants had not satisfied ‘victim status’ for the purposes of Article 34 ECHR; they had failed to demonstrate the existence of a sufficient link between the harm they had allegedly suffered (or would suffer in the future) and climate change. But the Court held, by 16 votes to one, that the applicant association did have locus standi in the present proceedings and that its com- plaint should be examined under Article 8 of the Convention.
Having admitted the association’s complaint, the Grand Chamber found that states are under a positive obligation under Article 8 to provide effective protection from ‘serious adverse effects of climate change on their life, health, well-being and quality of life’. In order to achieve this, states must enforce regulations that are capable of mitigating current and future impacts of climate change by having in place a plan for the reduction of greenhouse gas (‘GHG’) emissions and achieving carbon neutrality over the decades leading to 2050. Switzerland had failed in this in that it had not quantified a carbon budget, nor had it set limits on greenhouse gas emissions. It had also exceeded its previous GHG emission reduction targets, which resulted in a violation of Article 8. There was ‘no doubt’, said the Court, that climate change-induced heatwaves had caused, were causing and would cause further deaths and illnesses to older people and particularly women (represented by the Klimaseniorinnen association).
There was one sole dissent from the majority’s findings on admissibility and the merits. Further on in this article I will explore the different opinion of the British representative on the panel, Judge Eicke. Before that, we will look at the main arguments before the Court.
The Swiss Government argued that global warming had not reached the necessary level to create a tangible effect on the private and family life of the individual applicants under Article 8, including on their mental well-being.
The respondent state party also maintained that the Court should not allow the applicant association to circumvent the mechanism established under the Paris Agreement by seeking to establish, under the Convention, an international judicial control mechanism to review the measures to limit GHG emissions.
Various other governments intervened in this application to say, in effect, that the response to climate change should be an effective global response and that the Court should not, indeed could not, engage in a form of law- making and regulation which would bypass the role of the democratic process and institutions in the response to climate change.
The Swiss Federation also had quite a forceful argument on the in limine question of jurisdiction: it submitted that GHG emissions generated abroad could not be considered as attracting the responsibility of Switzerland as those emissions could not be directly linked to any alleged omissions on the part of Switzerland, whose authorities did not have direct control over the sources of emissions. Moreover, the whole system established by the UNFCCC, the Kyoto Protocol and the Paris Agreement was based on the principle of territoriality and the responsibility of states for emissions on their territory.Thus, said the respondent, the applicants could not complain about certain imports containing ‘embedded emissions’ from other jurisdictions. The Court did not agree. Although ‘embedded emissions’ contained an extraterritorial aspect, it did not raise an issue of Switzerland’s jurisdiction in respect of the applicants, but rather one of Switzerland’s responsibility for the alleged effects of the ‘embedded emissions’ on the applicants’ Convention rights.
A group of UN experts has expressed concern regarding deception and exploitation faced by migrants coming to work in the UK. The Seasonal Worker Scheme, put in place to cover labour shortages in the UK, has been criticised for creating conditions where deception, exorbitant recruitment fees, debt bondage, undignified living conditions and potential deportation are widespread. This is due to some recruitment agencies charging illegal recruitment fees, sometimes thousands of pounds, so migrants are frequently in debt even before they arrive in the UK. Once in the UK, they may find that there is no work for them, fewer hours than promised, or they may be forced to work in exploitative conditions. As the migrants’ visas do not allow them to change employers within the UK, many remain working under such conditions due to the threat of being removed from the UK. The Bureau of Investigative Journalism has published recent investigations on the hostile and humiliating working conditions faced by agricultural labourers and care workers, arguing that in some cases their treatment amounts to modern slavery.
In international news
President Biden has imposed strict new measures allowing officials at the Southern Border of the USA to turn away asylum-seekers. The Presidential proclamation states that when border crossings exceed the threshold specified by the President (currently 2,500), asylum seekers who cross the border without permission will be barred from applying for asylum until border crossings drop below a seven-day average of 1,500. The American Civil Liberties Union (ACLU) has announced that they are launching a legal challenge against the new measures.
Ambassador Ammar Hijazi, representing Palestine, has sought to intervene in the case between South Africa and Israel at the International Court of Justice (ICJ). He argues that Palestine has the right to intervene under Article 62 of the Statute of the ICJ, which provides that a state may apply to intervene in a matter if it considers that it has a legal interest in the case. He also argues that the Palestinians whom he represents are permitted to intervene under Article 63, which provides that every state notified of a pending convention concerning them is permitted to intervene in proceedings. The United Kingdom does not recognise Palestine as a state.
The US House of Representatives has passed a Republican bill, with support from some Democrats, sanctioning the International Criminal Court (ICC), after ICC Prosecutor Karim Khan KC applied for arrest warrants for, among others, Israeli officials PM Benjamin Netanyahu and Yoav Gallant. The Illegitimate Court Counteraction Act sanctions any foreign individual who directly or indirectly aids the International Criminal Court in investigating, arresting, detaining or prosecuting “protected persons”, that is US officials or the officials of US allies, in particular Israel. The sanctions laid out in the bill are property blocking (i.e. blocking and prohibiting all transactions in all property and interests in property), imposing inadmissibility for visas to the USA and revoking current visas to the USA.
In the courts
The High Court has held that the Home Secretary acted unlawfully in failing to provide immigrants with documentary proof that they are legally in the UK under “section 3C leave”. Section 3C of the Immigration Act 1971 provides that where an immigrant with leave to remain in the UK makes an immigration application before the expiry of their leave, they may lawfully remain in the UK until the Home Office finishes processing their application. Processing for some immigration applications can take months or even up to a year. During this time immigrants lawfully in the UK can have difficulty accessing employment, housing or medical care due to the “compliant environment” policies. The High Court held that the Home Secretary’s failure to provide digital evidence of section 3C leave was irrational: “The underlying purpose of the legislative framework is that there should be a hostile and unwelcoming environment for those who are unlawfully present and so who are undocumented. The corollary of this is that those who are lawfully here should not face the hostile environment. That can only happen if they are documented”. The court also held that the Home Secretary breached his duties to promote the welfare and best interests of children impacted by section 3C leave.
The High Court has reiterated once again that duties under the Children Act 2004 apply to all children in the UK, no matter their immigration status, and Kent County Council cannot derogate from these duties with regard to unaccompanied asylum seeking children. Kent County Council is struggling to accommodate the many unaccompanied children arriving in the UK after travelling across the English Channel. Until last year the unaccompanied children were accommodated in hotels, until the High Court found that this practice was unlawful. Kent County Council issued what it called “section 11 notices” stating that it cannot safely accommodate the children. The court held that there was no statutory basis for using section 11 of the Children Act 2004 to “attenuate” duties to accommodate children under the act; instead section 11 “imposes an obligation to make arrangements for ensuring that Kent CC’s functions are discharged having regard to the need to safeguard and promote the welfare of children”.
The High Court in Belfast struck down sections 12 to 16 of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 on Friday. The law granted automatic anonymity to people who are suspected of sexual offences where an allegation has been made to the police or the police have taken any step to investigate the offence, prohibiting reporting which might lead to the identification of such an individual. The prohibition only applied pre-charge, but continued for the duration of the suspect’s life and 25 years thereafter. The court found that the law was incompatible with Article 10 of the European Convention on Human Rights and did not strike a fair balance in public interest journalism cases, observing that “[p]ublic interest journalism serves a vital role in any democratic society”.
In other UK news, three prisoners were taken to hospital on Friday after disorder at HMP Parc, a prison in Bridgend, Wales, which is run by the private security firm G4S. 10 prisoners have died at the prison in the last 3 months. Families of those who have died at the prison had held a demonstration outside the prison earlier the same week. Deborah Coles, the director of INQUEST, said that “[t]he level of death and disorder at prisons like this one shows a complete failure of accountability on the part of government and a loss of control by ministers”.
In international news
An investigation by the Guardian and the Israeli-based magazines +972 and Local Call has alleged that Israel has deployed its intelligence agencies to surveil, pressure, and allegedly threaten senior ICC staff over the last decade. Israeli intelligence allegedly captured the communications of ICC officials, intercepting phone calls, messages, emails and documents. Yossi Cohen, the former head of Israel’s foreign intelligence agency, allegedly threatened Fatou Bensouda, a former ICC prosecutor, in an attempt to pressure her to abandon a war crimes investigation relating to Israel’s activities in the occupied Palestinian territories. The Guardianreported that Cohen’s activities were “authorised at a high level and justified on the basis that the court posed a threat of prosecutions against military personnel”. Cohen is alleged to have told Bensouda “[y]ou don’t want to be getting into things that could compromise your security or that of your family”. A spokesperson for Israel’s prime minister’s office said in response to the investigation: “The questions forwarded to us are replete with many false and unfounded allegations meant to hurt the state of Israel.”
On Wednesday the European Commission announced that it considers that there is no longer a clear risk of a serious breach of the rule of law in Poland, and that it would therefore close the Article 7 procedure against Poland which had been triggered in 2017. Article 7 of the Treaty of the European Union allows the EU to suspend certain rights from a member state. The Commission stated that Poland has introduced legislative and non-legislative measures to address concerns regarding the independence of the judiciary, and that it will continue to monitor the implementation of those measures. Human Rights Watch criticised the move as premature.
In the courts
On Thursday the High Court of the Hong Kong Special Administrative Region delivered its verdict for 16 of the 47 activists and former politicians known as the ‘NSL 47’. The 47 were charged with conspiracy to subvert state power under the new National Security Law, which was passed in March this year. 14 were convicted, with two being acquitted and the remaining 31 pleading guilty. The charges arose from the activists’ participation in an unofficial primary election in July 2020 to pick opposition candidates for the 2020 legislative elections, which were then postponed. The UK said the case showed how authorities have used the controversial National Security Law to “stifle opposition and criminalise political dissent”. A spokesperson for Beijing’s Office for Safeguarding National Security defended the prosecution, saying the OSNS supported the Hong Kong judiciary’s decision to “punish acts and activities endangering national security according to the law, with no tolerance for any interference by external forces in the rule of law in Hong Kong.”
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