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On Saturday morning, Russian opposition politician and anti-corruption activist Alexei Navalny was flown, in a coma, from a hospital in Siberia to Berlin for medical treatment. On Friday, the European Court of Human Rights had granted interim measures under Rule 39 of the Rules of Court, requiring Russia to grant access to the patient in order to assess his fitness for transport. The Court also ordered the Russian government to inform the Court of the medical treatment Mr Navalny is receiving by noon on Saturday (22 August), and to submit a copy of Mr Navalny’s medical file by 2 p.m. on Monday 24 August.
Mr Navalny fell ill on a plane flight last Thursday, with suspected symptoms of poisoning. The plane made an emergency landing and Mr Navalny was taken to be treated at a hospital in Omsk, Siberia, where doctors said on Friday that he was too ill to be transported elsewhere. Permission for Mr Navalny’s transfer to Berlin came after increased international pressure (from France and Germany in particular), an appeal to President Putin by Mr Navalny’s wife and supporters, and an application to the European Court. Mr Navalny’s family asked the European Court for permission to transport him to the Charité hospital in Berlin for treatment, as otherwise he faced a risk to his life or health, in violation of Article 2 (right to life) of the European Convention on Human Rights.
Even in times of emergency, … and even when the merits of the Government response are not widely contested, the rule of law matters.
Thus commenced a lengthy judgment by the New Zealand High Court, Wellington Registry, ruling that the first nine days of New Zealand lockdown were unlawful. The three judge panel found that
While there is no question that the requirement was a necessary, reasonable and proportionate response to the Covid-19 crisis at the time, the requirement was not prescribed by law and was therefore contrary to section 5 of the New Zealand Bill of Rights Act.
This recent judgment from the European Court of Human Rights arises from the 2012 transfer from Hungary to Azerbaijan of prisoner Ramil Safarov, a member of the Azerbaijani army, following his conviction in Hungary for the murder of an Armenian officer in 2004. In particular, the Court considered Article 2 ECHR (the right to life) in the context of (a) when a state can be held responsible for the actions of an individual carried out in a private capacity, and (b) the obligations on a state who transfers a prisoner to see out their sentence in their home state.
RS’s crimes, transfer and release
In February 2004, Azerbaijani army officer Ramil Safarov (RS) murdered Gurgen Margaryan (GM), one of two Armenian participants in a NATO-sponsored English language programme in Hungary, by decapitating him with an axe while he lay asleep. RS then tried to break down the door of the other Armenian participant, Hayk Makuchyan (HM), allegedly yelling, “Open the door, you Armenian! We will cut the throats of all of you!”, before he was stopped by the Hungarian police.
RS was tried and sentenced in Hungary to life imprisonment, with a possibility of conditional release after 30 years. During the criminal investigation in Hungary, RS gave evidence that he strongly disliked Armenians because he had lost relatives in the Nagorno-Karabakh conflict between the two countries, and that on several occasions during the programme GM and HM had provoked him and mocked both him and the Azerbaijani flag.
A recent decision of the High Court concerning the Manchester Arena Inquiry highlights an interesting question about public inquiries, the role of survivors and the protections offered by the European Convention.
A succinct summary of the decision and its context is set out by Matthew Hill here. As he explains, permission was refused on a number of grounds, including that the challenge was brought late. But it is the Court’s analysis of the obligations imposed by Articles 2 and 3 of the European Convention on Human Rights (“ECHR”) which is of interest to this article.
This week has been awash with controversy over an unexpectedly harsh set of A-level results, with GCSEs set to follow this Thursday. Because students could not sit exams this year due to COVID-19, results were calculated on the basis of an algorithm taking into account mock exam results, predicted grades, and schools’ past performance. As a result, 40% of students have had their predicted grades lowered, with many losing university places as a result. Yet in a tour-de-force of algorithmic elitism, the number of independent school students securing A* or A grades has increased by 4.7%, compared to only 2.2% at state schools, and 0.3% at further education colleges. Multiple legal challenges are in contemplation; Jolyon Maugham QC’s Good Law Project is supporting 7 students in a judicial review of the exam regulator Ofqual’s failings.
Algorithmic injustice has been in the courts this week too, as civil liberties campaigner Edward Bridges won an important victory in the Court of Appeal against the use of facial recognition technology by the police.
Mr Bridges had launched a judicial review against the use of ‘AFR Locate’ facial recognition technology by South Wales Police after being photographed by automated cameras when Christmas shopping and subsequently when involved in a peaceful protest. His challenge had been dismissed by a Divisional Court in September 2019. The original decision was covered on the blog by Sapan Maini-Thompson here.
The Court of Appeal, overturning a Divisional Court decision, has found the use of a facial recognition surveillance tool used by South Wales Police to be in breach of Article 8 of the European Convention on Human Rights (ECHR). The case was brought by Liberty on behalf of privacy and civil liberties campaigner Ed Bridges. The appeal was upheld on the basis that the interference with Article 8 of the ECHR, which guarantees a right to privacy and family life, was not “in accordance with law” due to an insufficient legal framework. However, the court found that, had it been in accordance with law, the interference caused by the use of facial recognition technology would not have been disproportionate to the goal of preventing crime. The court also found that Data Protection Impact Assessment (DPIA) was deficient, and that the South Wales Police (SWP), who operated the technology, had not fulfilled their Public Sector Equality Duty.
The High Court has struck out a claim that the disclosure of certain personal information made by a charity to the claimant’s GP was unlawful. Although only summary, this judgment goes to the heart of what we believe data protection to be about. As you will tell from my somewhat trenchant comments at the end of this post, I find it difficult to accept the main conclusion in this ruling.
The LGBT Foundation provides services including counselling and health advice. The claimant sought to access the charity’s services by completing a self-referral form in 2016. The form gave an option for the self-referring individual to consent to information being disclosed to their GP, and stated that the charity would break confidentiality without the individual’s consent if there was reason to be seriously concerned about their welfare. Mr Scott gave his GP’s details in the form. He also stated in the form that he no longer wished to be alive, detailed a previous suicide attempt, said that he had recently been self-harming and that he continued to suffer problems from drug use.
A sessional health and wellbeing officer at the charity conducted an intake assessment for Mr Scott to ascertain what support would be best for him. She told him of the confidentiality policy, including the provision that any information he disclosed would be passed on if the charity considered him to be at risk. In this interview he gave further details of drug use, self-harm and suicidal thoughts. The health officer paused the assessment and consulted a colleague, who advised her to inform Mr Scott that they would be contacting his GP because they had concerns about his welfare. The charity concluded it was at that time unable to provide him with the services he sought from them because of his ongoing drug use. They passed the information on to Mr Scott’s GP via a telephone call. This information was in due course recorded in his medical records.
Tribunal Administrative de Strasbourg, N°2003058 M. A. et autres
M. Simon, Juge des référés
Ordonnance du 25 mai 2020
This judgment was handed down over two months ago but its relevance to the current rules on face masks in the UK makes for interesting reading. It is available only in French.
A group of individuals brought a challenge to a decree issued by the mayor of Strasbourg obliging citizens over the age of eleven to wear facemarks in the streets and other areas, in particular the Grande-Ile (an island in the centre of Strasbourg), from 10am – 8pm, enforceable by a fine. The obligation was in force from May 21 to 2 June.
On 30 July 2020, the Crown Prosecution Service published its performance statistics on sexual violence cases for the year 2019-20, which vindicate long-held concerns about the “damning” number of cases being lost amid “under-resourced” investigations.
In response to a legal challenge brought by the Joint Council for the Welfare of Immigrants (JCWI), the Home Office has scrapped an algorithm used for sorting visa applications. Represented by Foxglove, a legal non-profit specialising in data privacy law, JCWI launched judicial review proceedings,, arguing that the algorithmic tool was unlawful on the grounds that it was discriminatory under the Equality Act 2010 and irrational under common law.
In a letter to Foxglove from 3rd August on behalf of the Secretary of State for the Home Department (SSHD), the Government Legal Department stated that it would stop using the algorithm, known as the “streaming tool”, “pending a redesign of the process and way in which visa applications are allocated for decision making”. The Department denied that the tool was discriminatory. During the redesign, visa application decisions would be made “by reference to person-centric attributes… and nationality will not be taken into account”.
The UK Human Rights Blog is committed to continuing to raise awareness of the vital issues that were brought to public attention in May and June. In this piece, we look at diversity at the bar, with particular focus on the commercial bar.
This article is largely an edited version of a piece which appeared in The Lawyer online in April this year and may be found here. We are very grateful to The Lawyer and to Harry Matovu QC for their kind permission to reproduce that content here.
Although a record number of black and Asian minority ethnic (BAME) barristers were awarded silk status this year (a total of 22), there is still a large diversity gap in the industry. BAME barristers accounting for just under 8 per cent of the QC population overall, according to the latest figures from the Bar Standards Board (BSB). Within the commercial bar, the representation of BAME barristers is particularly low, with only 8 per cent of barristers at a range of leading commercial sets being BAME.
The umbrella term of BAME also requires nuance. According to the BSB, of the 3,364 BAME barristers in this country, 1,497 are Asian or mixed, while 479 barristers are black. The difference is even greater at silk level; just 20 of the 149 BAME silks are black.
In a nutshell, therefore, BAME barristers as a whole are underrepresented, and under that umbrella, the representation of black barristers and silks is particularly low.
British SAS soldiers in Helmand province, Afghanistan. Credit: The Guardian
The final week of the legal term was set against the backdrop of new restrictions on the ability of different households to meet across a large part of northern England. The main restriction takes the form of a prohibition on individuals entering households other than their own to visit friends and family. As has become traditional over the last few months, the guidance was announced with a promise to bring forth new laws in the future, to confer actual powers of enforcement.
In addition, many of the week’s dominant news stories carried a prominent legal flavour:
The High Court has today handed down judgment in R (EA and Anor) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin) refusing permission for judicial review to a group of survivors who unsuccessfully sought core participant status in the forthcoming inquiry into the Manchester Arena bombing attacks. A full legal analysis of the decision will follow. This article provides a summary of the judgment and its context.
Inquiries and inquests into public disasters and terrorist attacks inevitably, and rightly, focus on those who died. But what of the many who are injured, and whose lives will be transformed as a result of the events? What role should they play in the public investigation that follows?
In three conjoined judicial reviews concerning the legality of the Home Secretary’s exercise of her power under paragraph 9 of Schedule 10 of the Immigration Act 2016 to provide accommodation to those who are granted immigration bail, Mr Justice Johnson held in R (Humnyntskyi) v SSHD [2020] EWHC 1912 (Admin) that each of the three claimants had been unlawfully denied such accommodation, and that the relevant policy was systemically unfair.
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