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Dominic Raab has returned to the role of Secretary of State for Justice and Lord Chancellor. Brandon Lewis stepped down from the role after 50 days in office; he recently engraved his name on the foundation stone at London’s Justice Quarter, where construction of a ‘super court’ began last week.
On 25 October, Safeguarding Minister Mims Davis announced new provisions, collectively known as ‘Kay’s Law’, to better protect victims of crimes such as domestic abuse and sexual assault. The reforms, coming into force this week, include imposing a duty upon the police force to take into account the views of victims before releasing someone on bail, and encouraging the use of pre-charge bail when necessary and proportionate. These reforms coincide with further measures to support victims, including the ‘ENOUGH’ campaign. The campaign provides information on support services, safe ways to intervene if someone witnesses an incident of violence against women and girls, and offers guidance for individuals worried about their own behaviour.
The ruling has been released in the deportation case of two members of the Rochdale grooming gang. Adil Khan, 51, and Qari Abdul Rauf, 52, lost their appeal against deportation after a seven-year legal battle following their convictions of child sex offences in May 2012. Although the appeal was heard at an immigration tribunal in June, with a decision made in August, judges have only just released their legal ruling. The challenge against deportation on human rights grounds failed; in both individuals’ cases there was a “very strong public interest” in them being removed from the UK.
Lawyers representing TFL have requested permission from the High Court to take legal action against a further 121 named people following the intensification of Just Stop Oil protests. Earlier this month Mrs Justice Yip granted an injunction against 62 named “defendants” and against “persons unknown”, also making an order that the Metropolitan Police should “disclose” to TFL the names and address of individuals arrested as a result of the protests.
In other news
A report, from the Minderoo Centre for Technology and Democracy, at the University of Cambridge, has stated that live facial recognition technology (LFR) should be banned from use in streets, airports and any public spaces. The study examined three deployments of LFR, one by the Metropolitan police and two by South Wales police; it found that all three failed “to meet ethical and legal standards”.
The Law Society has found that, at the current rate of progress, it will take more than 125 years before there is proper representation within the England and Wales judiciary. Black judges make up just 1.09% of the judiciary, compared with 1.02% in 2014, and it would take until 2149 for their representation to match current estimates for the general population (3.5%). For female representation to be achieved, it is expected to be at least another decade, and for people of Asian ethnicity, that stage in anticipated to be reached by 2033.
For the first time, the information commissioner has issued a blanket warning on the ineffectiveness of ‘emotional analysis’ technologies. The attempted development of ’emotional AI’ is one of four issues that the ICO has identified in a study of the future of biometric technologies. The “pseudoscientific” nature of the field makes it untrustworthy, especially in instances of gathering information related to important decision making.
In the courts
On 21 October the Court of Appeal handed down judgement in Rowe v London Borough of Haringey[2022] EWCA Civ 1370. The case concerned HHJ Roberts’ order dismissing the Appellant’s appeal against the London Borough of Haringey’s review decision dated 23 June 2021. The decision stated that the Appellant was not statutorily overcrowded under the requirements of Part X Housing Act 1985 (HA 85) and it was reasonable for her to remain in her accommodation. The dispute arose as to whether Part X HA 85 applied to the house as a whole, as the Appellant contended, or the Appellant’s room, as the Respondent contended. In post-hearing submissions, the Respondent contended whether Part X HA 85 applied at all, arguing instead that the relevant measure was that in Part 2 Housing Act 2004. The Court declined to decide on this issue, instead proceeding on the original submissions that Part X HA 85 applied. The Court held the property was not a ‘separate dwelling’ for the purposes of s.325 and s.326 HA 1985 and that no breach of overcrowding had occurred. Ground 2 of the appeal, assessing reasonableness of occupation was predicated on Ground 1, which had been dismissed. The Court held that the Respondent’s withdrawal of its original decision, via a letter dated 12 May 2022, due to their mistake in not assessing the property’s status as an unlicensed HMO did not render the claim as academic.
On 26 October, the High Court handed down judgement in Three Counties Agricultural Society v Persons Unknown & Ors[2022] EWHC 2708 (KB). The case involved an application for a precautionary injunction against ‘Persons Unknown’ by the Claimant, in an effort to curb protest activity at the Three Counties Defence and Security Exposition. The Court stated that the starting point for the grant of an injunction was s 37(1) of the Senior Courts Act 1981. In this instance European Convention rights were engaged, therefore the correct test to apply was the more stringent one laid down in Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100. The Court held that the injunction to prevent trespass upon the Claimant’s land was appropriate and necessary. In respect of the part of the Order relating to activity on the highway, the Court stated it must strike a balance between the rights of the protestors and the rights of the Claimant to access and egress its land. The Court held that granting the injunction would not unlawfully interfere with Article 10 and 11 rights of the protestors, and that any interference presented by the injunction was proportionate.
Rishi Sunak has formally been appointed the new UK prime minister, following Lizz Truss’ resignation on Thursday 20 October 2022. He is the youngest prime minister for more than 200 years and the first British-Asian prime minister.
A report by Baroness Casey has revealed that claims against Met Police officers of sexual misconduct, misogyny, racism and homophobia have been badly mishandled. According to the report, 1,809 officers – or 20% of all those facing allegations – had more than one complaint raised against them: less than 1% of officers facing multiple allegations had been dismissed from the force. Met Police Commissioner Sir Mark Rowley says he is ‘appalled’ at the findings and the situation ‘cannot continue’.
The University of Manchester has released a report which finds the judiciary in England and Wales to be ‘institutionally racist’. In a survey of almost 400 lawyers and judges, 95% said that racial bias played some role in outcomes in court and 29% said it played a ‘fundamental role’. The study also showed that judicial discrimination to be directed particularly towards black court users – from lawyers to witnesses to defendants. Since 2020, however, there has been only one published Judicial Conduct Investigations Office decision in which racism was found against a judge.
In this guest post, Dr Ilaria Bertini, Research Fellow at Bios Centre, examines the recent decision of a Chamber of the Third Section of the European Court of Human Rights in Mortier v. Belgium, which examined Belgian law relating to euthanasia.
Introduction
The European Court of Human Rights recently delivered a landmark judgment, Mortier v. Belgium (78017/17), on a case of euthanasia.
The case concerns an adult Belgian citizen who underwent a euthanasia procedure at a time when she was suffering from severe depression, without her son or daughter being properly informed. Hence her son, Tom Mortier, claimed that the government failed to protect both her right to life (art. 2 ECHR) and her right to respect for private and family life (art. 8 ECHR).
According to the Belgian Act on Euthanasia (28th May 2002) it is legal for a physician to perform euthanasia if the following three criteria are met: the patient is legally competent and conscious at the time of the request, the request is made autonomously without external pressure, and the patient is suffering from a “medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident.” An independent second opinion might be needed to assess the patient’s willingness to die. Once the euthanasia is approved, there is a cooling off period of one month before the act takes place. Afterwards a Commission of 16 persons seeks to check all the reports to make sure that the procedure has complied with the law.
On 22 September 2022, the UN Human Rights Committee found that the Australian Government had violated the human rights of various Torres Strait islanders through climate change inaction.
The rights in issue arose under the International Covenant of Civil and Political Rights of 1966, and in particular the right to life (Article 6), the right to be free from arbitrary interference with privacy, family and home (Article 17), the rights of the child (Article 24), and the right of indigenous minorities to enjoy their culture – all of which rights should be respected and ensured to all individuals (Article 2).
The Home Office has reclassified modern slavery as an “illegal immigration and asylum issue”. While it used to appear on the official list of ministerial responsibilities for the safeguarding minister, it is now listed at the bottom of the “illegal immigration and asylum” brief of immigration minister Tom Pursglove. According to official statistics, more than a quarter of all people identified as potential modern slavery victims are British, and 97% of all modern slavery referrals concluded in the first half of 2022 were confirmed as genuine by the authorities.
On 10 October, criminal barristers voted to end their strike over pay. 57% voted in a ballot to accept the package offered by Justice Secretary Brandon Lewis: an immediate 15% rise in fees for government-funded defence work, which will also apply to 60,000 cases in the backlog, and additional payments for a range of court preparation work. Crown courts have begun hearing cases as normal again, but it is not clear how quickly the backlog will be reduced.
Aonghus Kelly is the director of Irish Rule of Law International. In our latest episode Aonghus joined Jim Duffy just before he flew to Kyiv last week – before the shelling began – to talk about his organisation and the importance of the work of individual lawyers bringing their skills and expertise to war torn countries, to help the families of victims of war crimes and miscarriages of justice seek justice.
Aonghus talks about the challenges of traversing between common law and civil law cultures in order to help post-war societies set up their own legal systems so that their citizens can seek redress in the courts, both national and international.
He emphasises that other countries have their own cultures that need to be respected, and can only be helped effectively when organisations such as his liaise with local players. Aonghus is currently in Ukraine assisting his colleagues to build mechanisms which will ensure a future reckoning for the war crimes of today.
This war didn’t start in February, he says.
It started in 2014… The reality now is that the number of criminal acts is so enormous it is now presenting problems. And how could it not – in any war… even in the richest jurisdiction in the world.
Law firms in the UK will be banned from providing ‘transactional legal advisory services’ to Russians, as part of an effort to increase sanctions. The decision came after Putin’s announcement of the illegal annexation of 4 Ukrainian regions. The UK Government had previously banned services exported to Russia back in May (including accountancy, management consultancy, and PR), but legal services were deliberately excluded from this. The justification for that exclusion was the Rule of Law principle that everyone has a right to access legal representation. In order to maintain this principle as far as possible, the ban on legal advice has been limited to commercial and transactional services with a vision to impede Russian business’s ability to operate internationally.
The Online Safety Bill is currently making its way through the House of Commons, having reached the report stage in July. The bill’s concept of “legal but harmful” is controversial, and has attracted criticism from high places, not least of all former Supreme Court judge Jonathan Sumption. Lord Sumption joins Rosalind English in this episode to discuss the problems involved in defining this kind of harm and the concepts of “misinformation and disinformation” in the Bill.
Lord Sumption worries about the “sheer randomness” of the process for identifying legal but harmful material, and points out that the internet is absolutely vast; the “scale and speed at which material is added to it every moment of our lives is breathtaking”. The only way, he says, that this can be controlled is by the use of algorithms. But they are incapable of detecting nuance or irony. They are blunt instruments. When you are applying this kind of technique to material at this scale, you are bound to get a very large number of false positives.
“So you will lose an enormous amount of perfectly acceptable material, material that is not only legal but not harmful”.
Four defendants were acquitted by a jury in Bristol Crown Court following their trial for allegations of criminal damage on 7 June 2020 to a statue of the English merchant Edward Colston (1636-1721). The story has been widely covered elsewhere so I will limit this post to a discussion of the reference itself.
The application with which this reference was concerned was whether conviction for the damage done to the statue was a disproportionate interference with the defendants’ right to protest, under the free speech Article 10, right to gather under Article 11, and the right to freedom of conscience under Article 9.
The Attorney General has the power to refer verdicts to the Court of Appeal under section 36 of the Criminal Justice Act 1972 in the event of acquittals to correct mistakes of law so that those mistakes are not perpetuated in the courts below.
It is important to note at the outset that this reference was not directed to the jury’s verdict itself. It was to clarify the law on public protest to avoid confusion.
The Court of Appeal has provided its own press summary of their decision. In the following paragraphs I gather together the salient observations in this decision.
The House of Commons privileges committee has issued its response to the legal opinion of Lord Pannick KC and Jason Pobjoy (on behalf of Boris Johnson) in respect of its inquiry into ‘partygate’. Pannick’s opinion criticised the committee’s proposed conduct by identifying 6 areas where a ‘fundamentally flawed approach’ has been adopted. The most substantial criticism was that the committee did not consider intent to be necessary in proving that Johnson misled the House. The weight behind this argument was that there would be a ‘chilling effect’ on Ministerial comments if unintentional mistakes were held to be contempt. In their response, the committee described this proposition as ‘wholly misplaced and itself misleading’. The response also says that the opinion is ‘founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law’. Questions have been raised as to both the method of publication of the opinion (which was not shown to the committee as is convention) and why the matter was not arranged by the government legal service.
The Home Office plans to re-open immigration detention centres as Suella Braverman indicates that she will take a harder line on immigration than Priti Patel, her predecessor. The plans are for 2 centres to open in order to detain 1,000 male asylum seekers, and to increase the number of people the Home Office can imprison. The plan is specifically linked to the detainment of people before they are sent to Rwanda, at a projected cost of £399m. The new contracts come after the former prison ombudsman, Stephen Shaw, published two comprehensive and highly critical reports on immigration detention, though officials stress they will take this into consideration.
The Law Commission has proposed to ban discrimination in the appointment of arbitrators. At present, women are still ‘around three times less likely to be appointed as arbitrators than men’. The proposed reform would amend the Arbitration Act 1996 so that any agreement in relation to proposed arbitrator’s protected characteristics should be unenforceable. At present, many arbitration agreements require a ‘commercial man’ or similar. This situation received judicial treatment in 2011 in the case of Hashwani v Jivraj, where it was decided in the UKSC that since an arbitrator was not appointed under a contract of employment, employment law rules against discrimination did not apply.
Barristers on strike have had the first talk with the Justice Secretary, the newly appointed Brandon Lewis. The chairman of the Criminal Bar Association, Kirsty Brimelow KC, said the group was willing to negotiate, having taken the decision to strike following repeated requests to meet with Lewis’ predecessor, Dominic Raab, to no avail. The Justice Secretary described the talks as a ‘constructive initial meeting’ and urged the CBA to stop the strike while negotiations were underway. The CBA is still asking for a 25% rise in pay for legal aid in defence cases.
This year Law Pod UK celebrates its fifth birthday. In 2017 we were amongst the very first to roll out a specialised series of podcasts about the law in the United Kingdom. And after a brief hiatus we’re back with a bang, with two new presenters and a number of exciting upcoming guests.
Jim has extensive experience across clinical negligence, inquests and inquiries, personal injury, human rights, tax and employment and discrimination.
He is a member of the Attorney General’s Panel of Counsel (‘B’ Panel) and has particular experience of prison law and employment claims, acting on both sides.
In this episode he talks to Clare Ciborowska and Richard Ager at the Brighton Annexe of 1 Crown Office Row about how the family court deals with allegations of ‘alienating behaviour’ by one parent against another. They examine in particular the part psychologists play in that process.
Waiting in the wings is our second new presenter, Lucy McCann. You will be meeting her shortly. Lucy has recently joined Chambers after a stellar pre-pupillage career, including editing the OUP’s practitioner text, Judicial Review: Principles and Procedure and lecturing in public law at City Law School.
Back to Law Pod UK: we now have a strong following amongst lawyers, law students and those interested in legal issues. We recently surpassed 645,000 listens and have hosted guests including Nazir Afzal OBE, Bill Browder, Gráinne de Búrca, Lord Anderson of Ipswich KC, Harriet Wistrich and Joshua Rozenberg, and panels involving Lord Justice Singh and Sir Steven Sedley.
On Thursday 8 September, Queen Elizabeth II, the UK’s longest-serving monarch, died peacefully at Balmoral aged 96. She is succeeded by her son, King Charles III. He described the death of his mother as a ‘moment of great sadness’ for him and his family, and that her loss would be ‘deeply felt’ around the world. Her state funeral this Monday was watched by around 4 billion people worldwide, and more than a million people lined the streets of London to pay tribute.
On Friday 17 September, the measure known as section 28 was extended to five more crown courts, taking the total number to 63. The policy allows complainants of offences including modern slavery to be cross-examined before trial in front of a limited number of people. Although many barristers support the principle of the policy, some have stated there are insufficient resources for the scheme, particularly in the light of the indefinite walkout over legal aid fees. Many advocates refused to do section 28 cases pre-strike given the amount of extra unpaid work required.
The quarter-of-a-billion-pound IT project rolled out by the Ministry of Justice to increase the efficiency of sharing information between courts, lawyers and police has come under criticism. The Common Platform software system has been accused of putting the justice system ‘at risk’. It is reported the system has been resulting in difficulties for lawyers, unlawful detentions, and wrongful arrests. Whistle-blowers have called the system ‘faulty, unsafe and unfinished’.
On 8 September 2022, the European Court of Human Rights (ECtHR) handed down its decision in Drelon v France (application nos. 3153/16 and 27758/18).[1] The Court unanimously found a violation of Article 8 of the European Convention on Human Rights in relation to the collection by the French Blood Donation Service, the Établissement Français du Sang (EFS), of personal data relating to a potential blood donor’s presumed sexual orientation and the excessive length of time the data was kept in a public institution.
In recent years, digital assets including cryptocurrencies and non-fungible tokens (NFTs) have commanded considerable media attention. Speaking extra-judicially in the foreward to the UKJT Statement on Crypto-assets and Smart Contracts in November 2019, the Master of the Rolls, Sir Geoffrey Vos, has stated that: “In legal terms, cryptoassets and smart contracts undoubtedly represent the future”. To what extent should the law of the future grant property rights in respect of crypto assets? Will the inalienable right to peaceful enjoyment of possessions apply to tokens existing only on the blockchain? Or to NFTs residing only in the ‘metaverse’?
These are the questions addressed in depth by the Law Commission’s recently published consultation paper on Digital Assets (July 2022). In this article, the author offers a number of predictions about the future direction of English law based upon the Law Commission’s paper.
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