Category: In the news
10 September 2024 by Edward Waldegrave
In The Commissioner for the British Indian Ocean Territory v. The King (on the application of VT and Others), the UK Government has lost the latest round in long-running litigation concerning a group of individuals accommodated in basic facilities on the remote British Indian Ocean Territory (the “BIOT”).
Background
The BIOT is an archipelago consisting of over 50 islands located roughly half way between East Africa and Indonesia. It is a British Overseas Territory and is formally administered from London by a Commissioner, who performs both legislative and executive functions.
Diego Garcia is the largest island in the archipelago. It has no settled population but accommodates a substantial US/UK military facility. The facility employs a transient population of about 4,000.
In 2021 a group of individuals of Tamil ethnicity left India by boat, apparently with the goal of reaching Canada. On 3 October 2021 their vessel encountered difficulties in the Indian Ocean and was escorted by the Royal Navy to Diego Garcia. Following their arrival in the BIOT, the individuals made claims for asylum. These claims remain un-determined, and some 61 individuals (including children) have now been living on Diego Garcia for nearly three years. There they have been housed in what have been described as “hellish” conditions. The majority live in tents in Thunder Cove (referred to as the “Camp”). Initially they were confined to the Camp itself, but as a result of an order made on 21 December 2023 they gained access to a nearby beach. They also have limited access to buildings outside the Camp for the purposes of consultations with lawyers, medical treatment and, for children, education. A few individuals who with medical complaints which could not be addressed on Diego Garcia have been flown to Rwanda for treatment.
In May 2024 eleven individuals were granted “bail” on terms which allowed them (in summary) to leave the Camp and walk along highway DG1, and to access beaches from the road. These arrangements appear to have been uncontroversial. When they were put in place, it was envisaged that the limited freedoms granted to the eleven individuals would be extended to the other migrants on Diego Garcia. In any event, it was also expected that the position of all of the individuals would be finally resolved at a hearing scheduled for July 2024. This substantive hearing has, however, been indefinitely adjourned.
The July 2024 Bail Application
In July 2024 a number of the individuals applied for extended bail. Specifically, they sought access to a “nature trail”, and also sought changes to the terms on which their bail could be exercised.
In response to this application (the “July Application”) the Commissioner sought the views of the US authorities responsible for the operation of the military facilities on Diego Garcia. The US authorities provided their views on the July Application a few hours before it was due to be heard (on 23 July 2024). The US position was stark: it opposed any extension of bail on the basis that the proposals posed “operational, security, health and safety risks [to the military facilities on Diego Garcia]… which cannot be mitigated or would be unduly burdensome to mitigate”.
The Commissioner applied for an adjournment of the hearing of the July Application to give him more time to consider the response of the US. This was rejected.
Very shortly after the hearing on 23 July, the Commissioner received letters from (i) the Director General for Africa and the Americas at the Foreign, Commonwealth and Development Office; and (ii) the Minister of State for Europe, North America and the UK Overseas Territories. Both emphasised the respect which should be accorded to the US’ concerns. These letters were provided to the Court.
On 26 July Judge Obi of the Supreme Court of the BIOT granted the July Application, subject to some relatively minor caveats. In particular, she extended bail to all the relevant individuals and permitted access to the Nature Trail.
The Commissioner appealed, and the Court of Appeal of the BIOT heard the appeal on 9 August. It handed down its decision, dismissing the appeal, on 20 August.
The Commissioner’s Grounds of Appeal
The Commissioner appealed against the Judge’s order on four grounds:
- It was procedurally unfair for the Judge to have proceeded with the hearing of the July Application on 23 July (i.e. not to have granted the Commissioner’s application for an adjournment to allow more time to consider the US response).
- The Judge exercised her discretion unreasonably because she failed properly to consider the impact of extending bail on US/UK relations.
- The Judge exercised her discretion unreasonably because she failed to attribute due weight to the assessment by the US authorities of the security implications of extending bail.
- The Judge exercised her discretion unreasonably because the July Order necessarily impacted upon decisions by the Commissioner concerning the allocation of resources.
The Court of Appeal’s Determination
The Court of Appeal dismissed the Commissioner’s appeal on all grounds.
Ground 1: Procedural Unfairness
The Court rejected the Commissioner’s contention that it was procedurally unfair for the Judge to refuse to adjourn the hearing of the July Application for two reasons.
First, the Court agreed with the Respondents that there was nothing “new” in the US’ response to the July Application. In summary it took the view that the US’ position had long been clear, and had amounted to “consistent and unvarying opposition” to any bail arrangements. Its response to the July Application was wholly consistent with this. Accordingly the Judge had been entitled to take the view that it was not necessary for the hearing to be adjourned for the Commissioner to have a fair opportunity to present his case.
Secondly, the Court noted that the Judge permitted oral submissions to be made on the two letters which the Commissioner received just after the hearing of the July Application. That further oral hearing constituted an obvious opportunity for the Commissioner to make any additional submissions on the US’ response to the July Application. The fact that he had not sought to make any such submissions undermined the contention that it had been unfair for the Judge not to adjourn the first hearing.
Ground 2: US/UK Relations
The Commissioner’s next ground of appeal relied on a contention that the Judge had failed to attach due significance to the impact that extending bail would have on US/UK relations.
The Commissioner’s case on this ground seems to have been somewhat confused. It appears to have been uncontroversial that “questions relating to international relations… are not generally justiciable”. However, it was also common ground that international relations considerations could not necessarily “dictate the outcome of the court’s enquiry”. The Commissioner’s argument before the Court of Appeal on this ground (at least in part) was that, because the grant of bail “had the potential to have a profound impact on international relations between the UK and [the US]”, the Judge should have exercised extreme caution before granting the July Application. As the Court of Appeal recognised, however, this was inconsistent with the Commissioner’s acceptance that the impact on the UK’s international relationships was just one factor to be considered in the overall balancing exercise. On that basis, the only question was whether the Judge had in fact properly evaluated the security concerns raised by the US. The Court of Appeal concluded that she had, and that there was no warrant for interfering in the evaluative conclusion which she had reached.
Ground 3: US Security Assessment
The Commissioner next argued that the Judge had failed, in summary, to accord sufficient respect to the US’ assessment that the grant of the July Application would interfere with security considerations.
Again, the Court dismissed this Ground. It accepted that it was for the relevant US authorities, rather than the Judge, to take a view on whether the grant of the July Application would have adverse security implications. However, this is not what the Judge had done. She had not questioned the US view of the relevant security implications but had, quite properly, taken that into account as a factor to be weighed alongside other relevant considerations. Her overall evaluation was that the July Application should (broadly) be granted. There was no warrant for interfering with that evaluation. In deciding that the Judge had accorded due respect to the US assessment of the security implications, the Court of Appeal seems to have relied in part on the fact that the Judge rejected aspects of the July Application (such as permitting the individuals to access a social club on Diego Garcia) because of the burdens those aspects would give rise to for the Commissioner.
Ground 4: Resource Allocation
Finally, the Commissioner argued that the Judge had strayed into another non-justiciable area because granting the July Application necessarily had implications for the allocation of resources by the Commissioner (in that there would be costs for the Commissioner associated with the extended bail arrangements).
Again, the Court found little difficulty in rejecting this Ground. It concluded that the Judge had not purported “to tell the Commissioner how to spend the funds available to the BIOT”. Rather she had explicitly recognised that this was a matter for the Commissioner. As was pointed out in argument, decisions as to bail conditions regularly have cost implications for the authorities; it would be surprising indeed if judges making such decisions were unlawfully straying into non-justiciable resource allocation territory.
Comment
It has been suggested (in particular by Joshua Rozenberg: see https://rozenberg.substack.com/p/uk-loses-diego-garcia-appeal) that the Commissioner must have recognised that he was likely to lose the appeal to the Court of Appeal, and that the appeal was only pursued in an attempt to show others (such as the US Government) that the UK was exhausting all its options in seeking to prevent bail being extended. On this view, the Court of Appeal’s decision was, from a legal perspective, “obvious”.
It is true that aspects of the Commissioner’s case before the Court of Appeal seem to have been very weak. In particular, it is difficult to see how the Commissioner could reasonably have hoped to succeed on Grounds 1 or 4.
However, the Court of Appeal’s decision does give rise to some points of genuine legal interest. In discussing Ground 2, the Court of Appeal accepted that the conduct of the UK’s foreign relations is non-justiciable in itself, but that the Crown’s foreign policy priorities can be weighed in the balance against other factors in determining a bail application. Presumably the same is true in other contexts. Similarly, in relation to Ground 3, the Court accepted that it is for the executive (in this case, in effect, the US Government) to form a view as to the state’s security interests, but that its view can be weighed among other factors in an appropriate case. This distinction is one which surely merits further academic, legal and political scrutiny. Put briefly, it is difficult to see how judges can on the one hand be expected to “keep out” of foreign policy and national security questions if the executive’s views on such matters are susceptible to being balanced against other factors (such as, in this case, the interests of individuals in being able to move more freely than has hitherto been the case). The Court’s approach to this issue seems to have been largely a result of the Commissioner’s acceptance that foreign policy and national security considerations did not constitute “trump cards” but were merely factors to be weighed in the balance. The Commissioner might have stood a better chance of success, and his case would certainly have been more intellectually coherent, had that concession not been made.
The second point arising from the Court’s judgment which is of significant interest concerns the way in which the parties and the Court all viewed the July Application through the prism of “bail”. As the Court itself recognised, this case falls far from the ordinary context in which bail principles are applied. One might see this case as demonstrating the admirable ability of English legal principles to address novel factual circumstances. Others might regret that such a unique set of facts could only be addressed by an analytical framework developed in very different cases.
Edward Waldegrave is a barrsiter at 1 Crown Office Row.
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4 September 2024 by anuragdeb
Introduction
The road to hell, so the saying goes, is paved with good intentions. While not quite as dire, well-intentioned laws can nevertheless sometimes have severe consequences. In Re Mediahuis and others’ applications for judicial review [2024] NIKB 45, the Northern Ireland High Court declared 5 sections of one such well-intentioned law, the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (the 2022 Act), invalid. This is the first invalidation of devolved Northern Ireland statutory provisions since the present devolution settlement (the Northern Ireland Act 1998) was enacted 26 years ago. On one level, the judgment is fairly unremarkable – courts are empowered to declare invalid any devolved statute (or statutory provision) which is found to be outwith devolved legislative competence (in this case because of incompatibility with Article 10 of the ECHR) and have done so without raising eyebrows since the advent of devolution in the UK. On a deeper level, however, the judgment and the justification for the relevant provisions of the 2022 Act show the limits of formal equality in addressing substantive injustice.
The judgment
The 2022 Act was a partial response to a wide-ranging review into the legal and policy measures around serious sexual offences in Northern Ireland. This review, carried out by retired Court of Appeal judge Sir John Gillen (the Gillen Review) made several recommendations. Among these, the relevant recommendations for this case were (1) an extension of anonymity for complainants of sexual offences beyond their lifetimes, (2) pre-charge anonymity for suspects of sexual offences and (3) a statutory prohibition on the publication of suspects’ identities pre-charge. The 2022 Act implements (1) (by extending complainant anonymity to 25 years after the complainant dies) but goes much further in implementing (2) and (3) than recommended in the Gillen Report. In respect of (2), the 2022 Act allows suspects to remain anonymous pre-charge on almost the same terms as complainants (during their lifetimes and up to 25 years after death), meaning that if a suspect is never charged, no identifying details may be published until after 25 years following their death. The reporting restriction can be lifted by a court on the application of the police, the suspect or (if the suspect has died) the suspect’s close family, personal representative or anyone interested in reporting any prohibited matters relating to the suspect. Importantly, the press may not apply to lift the reporting restriction during the suspect’s lifetime. On (3), the 2022 Act criminalises the unauthorised publication of suspect details and prescribes a custodial sentence or a fine (or both) for the offence.
Plainly, the 2022 Act represents a significant hurdle to public interest reporting. The pre-charge anonymity is just as extensive as complainant anonymity, and may only be lifted on the application of an extremely limited cohort of people. The justification offered by the Northern Ireland Department of Justice (DoJ), to put the matter mildly, lacked much (if any) persuasiveness. The DoJ pointed to the deleterious impact of publishing or reporting on a sexual offence suspect’s details before charge, with consequences ranging from reputational damage to a threat to life (Mediahuis, para 58). But the Act does not provide a general public interest defence to the offence of unauthorised publication. Such a defence would allow a court to carefully scrutinise two competing issues – any public interest in publishing a suspect’s details pre-charge and that suspect’s rights under the ECHR – and balance them. And nor does the process to lift reporting restrictions include the press as applicants. The rationale for this was virtually non-existent, with the DoJ simply saying:
“It was considered necessary to draw a distinction between who can apply before the death of the suspect and who can apply thereafter to reflect the very different circumstances that apply in those varying circumstances.“
But the Court was not provided with the reasons why this distinction was “considered necessary”. The DoJ further claimed that broadening the cohort of people who could apply to lift the reporting restriction (journalists, for example) during a suspect’s lifetime would “run contrary to the aims of key recommendation 10 [of the Gillen Report].” The relevant recommendation (in full) is:
“There should be no change in the current law concerning publication of the identity of the accused post charge. The identity of the accused should be anonymised pre-charge and the accused should have the right to apply for a judge-alone trial in the rare circumstances where the judge considers it to be in the interests of justice.“
Plainly, the DoJ’s claim about the recommendation was unsustainable.
It is therefore unsurprising that the High Court (Mr Justice Humphreys) should have found the relevant provisions to be a disproportionate interference with Article 10 of the ECHR (the freedom of speech and expression), creating a ‘chilling effect’ on public interest journalism (Mediahuis, para 102).
To be clear, laws with categorical exclusions like the 2022 Act are not, by their categorical exclusions alone, inconsistent with the ECHR. Another devolved Northern Ireland statute – the Abortion Services (Safe Access Zones) Act (Northern Ireland) 2023 (which creates areas around abortion services providers for the safety of their users and staff by fining certain conduct within these areas) emerged from the Supreme Court entirely unscathed, despite containing clear categorical exclusions of certain behaviours (in the form of a strict liability offence in respect of those behaviours). But there are important differences between the 2022 Act and the Abortion Services Act. Chief among these is that fact that the former proscribes unauthorised publication with a custodial sentence, whereas the Abortion Services Act provided for a fine. Moreover, the banned behaviours in the Abortion Services Act are spatially limited to the defined safe access zones around abortion services providers; people are free to oppose such services elsewhere, so the limitations on Article 10 rights are themselves limited. By contrast, the pre-charge publication bar in the 2022 Act applies without distinction as to geography or other factor, and continues for a quarter of a century after a suspect’s death if the suspect is not charged. The limitation on Article 10 rights is thus extreme, and could only be justified (if at all) with the clearest and most compelling reasons. In this, the DoJ ultimately failed.
The erroneous focus on formal equality
The largely unsurprising ECHR assessment of the 2022 Act by the High Court aside, it is curious that pre-charge suspect anonymity and complainant anonymity should have been placed on the same formally equal plane. This is especially the case given that formal equality between complainant anonymity and (general) suspect anonymity was categorically rejected as ‘flawed’ by Sir John Gillen (Gillen Report, para 12.90). Sir John identified a number of reasons why complainants are entitled to greater anonymity – not least to encourage their participation in the criminal justice process. In the same vein, publishing or otherwise disclosing the identity of suspects of sexual offences encourages other potential complainants to come forward in a society where the conviction rate for such offences remains, in the words of Sir John ‘troublingly’, low (by the time Sir John had published his findings, the conviction rate for sexual offences in Northern Ireland had also been falling, see Gillen Report pg. 10).
Moreover, the social stigma associated with being a survivor of sexual violence or abuse acts as a further barrier. Within his Report, Sir John recognises the myriad ways in which different groups of survivors – women of colour (para 13.76), people with disabilities (e.g. paras 13.46 and 13.55) and men (para 13.148) – experience stigma.
All of these factors combine to highlight one of the main themes underlying the Gillen Report and the implementation of its recommendations by the DoJ over the years since the Report’s publication: the need to ensure that ‘one of the worst violations of human dignity’ – sexual crime – is not compounded by the very system designed to hold its perpetrators to account. This is not to discount the experiences of those whose details are published despite not being charged, and the indignities they suffer as a result. But fundamental to this complex and highly sensitive area is the recognition that different people experience different indignities. The formal equality which characterised the invalidated provisions of the 2022 Act, however, completely failed to recognise this reality. Instead, it effectively flattened the many accounts of survivors and suspects found in the 700-odd pages of the Gillen Report into a highly simplistic equation: whatever anonymity was conferred on complainants must also (mostly) be conferred on suspects while they remain uncharged.
This flat plane of formal equality ultimately imperilled the very provisions which were intended to protect the dignity of those people who, whether voluntarily or otherwise, come into contact with the criminal justice system for sexual offences. In the aftermath of the High Court’s judgment, the Northern Ireland Minister of Justice initially indicated that she was considering an appeal, before confirming that no appeal would be pursued. The resultant situation is that the relevant provisions of the 2022 Act – sections 12-16 – are invalid, so there is no bespoke statutory pathway to ensure suspect anonymity at the pre-charge stage (the UK Supreme Court judgment in Bloomberg LP v ZXC [2022] UKSC 5 recognises an ECHR-derived reasonable expectation of privacy at the pre-charge stage).
Without impugning the good intentions of the DoJ, the Assembly and the Northern Ireland Executive, Mediahuis and others should give Ministers and Departments pause for thought. Addressing the substantive (and sometimes life-altering) injustices which are experienced as a result of or in relation to sexual crime requires much greater sensitivity than a simple formal equality.
Anurag Deb is a PhD candidate at Queen’s University Belfast and a paralegal at KRW LAW LLP.
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2 September 2024 by Catherine Churchill
In UK News
Following May’s High Court judgment finding former Home Secretary Suella Braverman’s protest regulations unlawful, human rights organisation Liberty claimed last week that the Home Office has decided to continue its appeal. The case, spearheaded by Liberty, sought to challenge the lowering of the threshold for “serious disruption” during protest from “significant” and “prolonged” to “more than minor” by statutory instrument – which opponents claim is an abuse of secondary legislation. Despite the new Labour government initially pausing the former Tory government’s plans to appeal, Liberty have stated that the Home Office have recommenced the appeal after talks to resolve the dispute failed. The director at Liberty, Akiko Hart, has said she believes the legislation to be “undemocratic, unconstitutional and unacceptable” and that the decision to appeal shows “disregard for the rule of law”. Liberty have stated that the appeal will be heard later this year, with a date yet to be confirmed. A spokesperson for the Home Office has said that “the right to protest is fundamental to our democracy, and all public order legislation must balance this right. However, we disagree with the court’s ruling in this case and have appealed their decision.”
Scotland’s Chief Inspector of Prisons has claimed that the country’s “broken” prison system results in inmates being “set up to fail”. Having stepped down from her role at the end of August, Wendy Sinclair-Giebens expressed concerns about the state of Scottish prisons: “The prison service is underfunded and under-resourced for what the public and judiciary expect of it, yet it’s a very big organisation having to deal with the most marginalised, violent and mentally ill in society”. She revealed there is a pool of inmates unable to move further towards parole due to the “huge” waiting lists for the mandatory behavioural programs. The news follows a 2023 ruling by an Irish judge barring the extradition of a man to Scotland on the basis of a “real and substantial risk of inhuman or degrading treatment”, largely a result of the overcrowding of Scottish prisons. The ruling was, however, later overturned on appeal following express assurances from the Crown Office in Edinburgh that the prison would implement a tailored care plan for the respondent. Last week also saw the release of 477 Scottish prisoners as part of an emergency scheme to ease prison overcrowding as Scotland’s justice secretary revealed the prison population has risen by 13% in the last year.
The annual report of the Committee on Fuel Poverty published last week has revealed that fuel poverty is “flatlining rather than falling”. Despite a reduction in fuel poverty of 40% between 2010 and 2019, the last five years has not seen fuel poverty fall “to any meaningful extent”. The government has identified the groups at highest risk of being unable to afford energy and “living in a cold home” as those living in the private rented sector, ethnic minority households, and households using pre-payment meters – the government has emphasised the importance of aligning fuel poverty mitigation measures with wider equality goals. The report follows the controversial announcement by the new Labour government that universal winter fuel payments to pensioners will be scrapped. The energy minister, Miatta Fahnbulleh, has been conducting meetings to consider support measures for households experiencing fuel poverty. The annual report emphasises that it “is not defeatist. The Committee believes fuel poverty can be beaten. But for too many low-income households, the unaffordability of bills, especially in the coldest months, is all too real. We foresee that targeted financial support, possibly including the use of social tariffs, for vulnerable and low-income households may be needed for some years to come.”
In International News
A new “morality” law introduced by the Taliban last week has been met with condemnation by the UN and various human rights organisations. Titled “The Propagation of Virtue and Prevention of Vice Law”, the law seeks to prevent leading men into “vice” by requiring women to be completely veiled in public. Women are also prevented from singing or reading aloud where they could be heard by a non-family member, as well as looking directly at men to whom they are not related. The laws state that “whenever an adult woman leaves her home out of necessity, she is obliged to conceal her voice, face, and body”. The Chief Spokesperson for the UN Office of the High Commissioner for Human Rights has stated that the law “effectively attempts to render [women] into faceless, voiceless shadows” and called for its immediate repeal. The head of the United Nations mission in Afghanistan, Roza Otunbayeva, said that the law reveals a “distressing vision” of the country’s future by extending “the already intolerable restrictions on the rights of Afghan women and girls”. The law comes in defiance of Security Council Resolution 2681 (2023) which called on the Taliban to “swiftly reverse its policies and practices restricting women and girls’ enjoyment of their human rights and fundamental freedoms”. It has been reported that Afghan women are posting videos online of themselves singing in protest against the new restrictions.
A UN report published on Friday has further exposed the ongoing human rights violations in Libya. The accompanying press release slams the “lack of accountability and years of impunity” by those committing the violations as further fuelling instability in the country. The report investigates unlawful killings, torture, kidnappings, and sexual violence committed by Al-Kaniyat – a local militia who have conducted what has been termed by the UK Government a “reign of terror” in the region of Tarhuna. The report reveals “serious violations of international humanitarian law”, calling for accountability, the delivery of justice, and effective reparations for victims. The report argues that “leaving root causes and drivers of conflict unaddressed […] will serve to fuel toxic cycles of violence and revenge between communities.” The UN High Commissioner for Human Rights, Volker Türk, expressed a similar sentiment, stating that “the impunity must end – there must be accountability in accordance with international due process and fair trial standards.”
The Swiss Federal Council voted last Wednesday to affirm Switzerland’s rejection of the groundbreaking KlimaSeniorinnen ECHR judgment from last April, which found that Switzerland was breaching human rights through climate change inaction. Despite previous calls by the dominant party – the Swiss People’s Party – for Switzerland to leave the Council of Europe, the Swiss Federal Council instead reaffirmed in a press release that “the ECHR and membership of the Council of Europe, whose fundamental values of the protection of human rights, democracy and the rule of law include, remain of great importance to Switzerland”. However, it was added that “the case law must not lead to an extension of the scope of the ECHR”. The move has been criticised by the Center for International Environmental Law as an “embarrassment” for Switzerland, who it claims have missed an opportunity to “strengthen its climate policy in accordance with undisputed science”.
See Rosalind English’s post on the KilmaSeniorinnen ECHR judgment here.
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26 August 2024 by Emilia Cieslak
In UK news
The Children’s Commissioner for England, Dame Rachel de Souza, has published a report which found that black children are four times more likely to be strip searched compared to national population figures. The report analysed a dataset of all the strip searches conducted by all 44 police forces in England and Wales from January 2018 to June 2023. The report found that in almost half (45%) of the strip searches an appropriate adult was not confirmed to be present and the youngest child searched was eight years old. The majority (88%) of searches were conducted on suspicion of drugs and in 47% of cases the search resulted in “no further action”. The Commissioner argues that this calls into question their necessity and that strip searches should only be carried out on children where there is a clear and immediate risk of harm to themselves or others.
The UN’s Committee on the Elimination of Racism (CERD) has recommended that the UK government “implement comprehensive measures to curb racist hate speech and xenophobic rhetoric, including on the part of political and public figures”. The CERD highlighted the riots which occurred in the UK in August 2024, after the Southport stabbings in which three young girls were killed and emphasised the role of social media disinformation regarding the perpetrator’s identity in stoking the riots. The government has responded to the disorder by activating Operation Early Dawn. This is an emergency action to manage the transfer of prisoners as hundreds of people have been charged for involvement in the riots. Under Operation Early Dawn, defendants will only be summoned to a magistrates court when a cell in the prison estate becomes available, and until then, if they are remanded in custody, they will be held in police station cells.
The Home Secretary, Yvette Cooper, has announced new measures to significantly increase the removal of failed asylum seekers. These measures include recruiting 100 specialist intelligence officers to the National Crime Agency to disrupt human smuggling gangs, new measures to target employers who hire illegal workers, and increasing capacity at the Campsfield and Haslar Immigration Removal Centres.
In international news
The Ukrainian Parliament (Verkhovna Rada) has passed legislation to ratify the Rome Statute of the International Criminal Court (ICC) making Ukraine a state party. The Ukrainian Foreign Minister Dmytro Kuleba has stated that the move shows Ukraine’s “unwavering commitment to strengthening international justice” and to work effectively with the ICC to “ensure comprehensive accountability for all Russian atrocities committed in the course of Russian aggression”. The ratification of the Rome Statute is also a requirement for Ukraine to join the European Union, as set out in the Association Agreement between the European Union and Ukraine. The ICC has so far issued arrest warrants for Vladimir Putin, Commissioner for Children’s Rights Maria Lvova-Belova, former Minister of Defence Sergei Shoigu, and Chief of the General Staff of the Armed Forces and First Deputy Minister of Defence Valery Gerasimov.
The UN Special Rapporteur on Torture, Alice Jill Edwards, has expressed concern after video footage was leaked of an Israeli Defence Forces (IDF) soldier sexually assaulting a Palestinian detainee. The Special Rapporteur has urged that “all alleged crimes committed within the context of this terrible war must be investigated transparently and impartially, and those responsible held accountable by civilian courts of law”. The Israeli NGO B’tselem has published a report based on the testimonies of 55 Palestinian detainees who described systematic abuses including violence, sexual assault, and denial of medical treatment. As of July 2024, there are 9,623 Palestinians held in Israeli prisons, 4,781 of which are held in “administrative detention” which means they are held without charge.
In the courts
The UK government has lost an appeal against the decision that it cannot restrict the movement of asylum seekers who inadvertently arrived at the Diego Garcia military base. In October 2021, 47 Sri Lankan Tamil asylum seekers, including a number of children, were rescued at sea by the Royal Navy and brought to the military base which is classified as a British overseas territory. Since then they have been restricted to a small area of the island due to the “operational, security, health and safety risks” if they were granted freedom of movement. The court rejected the government’s grounds of appeal, inter alia, that the judge acted unreasonably in failing to place adequate weight on the authorities security concerns. This long-standing litigation has been followed and reported by Joshua Rozenberg KC (hon), and his commentary is available here.
The Federal Court of Australia has determined that Australian case law has consistently held that sex is “changeable and not necessarily binary”. Ms Roxanne Tickle, a trans woman, sued Giggle for Girls, a social media app for communication between women, alleging unlawful gender discrimination when she was barred from having an account on the app. The court held that the claim of indirect gender discrimination succeeds, as to gain access to the app users had to send a selfie and the reviewer determined that Ms Tickle did not have the appearance of a cisgender woman.
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12 August 2024 by Catherine Churchill
In UK News
Riots continued throughout the UK last week, sparked by the attack and murder of 3 children in Southport on July 29th. The riots have been linked to a widely circulated online rumour falsely identifying the perpetrator as a Muslim asylum seeker. UK Chief Executive for Amnesty International, Sacha Deshmukh, has stated the riots to be caused at root by “racism, Islamophobia and xenophobia”. Prime Minister Keir Starmer has called the rioting an “assault on the rule of law and the execution of justice” and made clear that those involved will not “be allowed to hide behind the legitimate right to protest”. The Crown Prosecution Service revealed on Friday via a post on X (formerly Twitter) that 159 individuals have been charged in connection with the “violent disorder” across the country, with a total of 741 arrests having been made. The news follows Justice Minister Heidi Alexander’s announcement that the process of opening 500 prison places for those involved in the riots is underway.
On Friday, the UK Government announced fresh sanctions against Belarus in response to ongoing human rights violations in the country. The sanctions have been announced on the four-year anniversary of the “deeply flawed” 2020 presidential elections in Belarus; elections which Foreign Secretary David Lammy stated have resulted in “over 40,000 citizens arrested on trumped up political charges, civil society and independent media trampled and a regime with no regard for democracy or human rights”. The Viasna Human Rights Center, a Belarusian NGO, claims that as of August 11, Belarus holds 1385 political prisoners including journalists and human rights activists. The new sanctions raise the total number against Belarus to over 200 individuals and entities. The announcement also revealed a funding package of £2.5 million to support human rights and civil liberties in Belarus.
In Other News
Unrest continues in Venezuela following the contested re-election of President Nicolas Maduro on July 28th. US Secretary of State Anthony Blinken has published a statement arguing that there is “overwhelming evidence” that the opposition leader, Edmundo Gonzalez Urrutia, was the true victor. The statement cites the fact that the opposition have published over 80 percent of the tally sheets from polling stations across Venezuela showing Urrutia to have won by an “insurmountable margin”, further corroborated by exit polls. The announcement of Maduro’s re-election sparked protests across the country which have continued into this week. In a press conference on Tuesday, Maduro announced that over 2229 individuals had been arrested in connection with the protests, calling those involved “terrorists”. In a press conference last week, a spokesperson for UN High Commissioner for Human Rights Volker Turk expressed concern over the “numerous cases of arbitrary detention”, including that of peaceful protestors, human rights defenders, children, and journalists. Amnesty International sent an open letter on Friday to the Prosecutor of the International Criminal Court calling for his “resolute and immediate action” against the crimes being committed under international law by Venezuelan authorities. Amnesty argue in the letter that the ongoing “tragedy is a consequence of the impunity for serious human rights violations and crimes against humanity that Maduro’s government has been committing for years.”
Reports have surfaced that in only two days last week, Iranian authorities executed a minimum of 29 individuals. The UN Office of the High Commissioner have verified that a further 38 people were executed in Iran over the course of July, raising the total for 2024 thus far to 345. The Office raised concerns in particular about the “lack of due process and fair trial standards”, with several executions occurring with “neither the prisoner’s family nor legal counsel being informed”. NGO Iran Human Rights has reported that 26 men were executed in a group hanging outside Ghezelhesar Prison – an execution the scale of which has been unparalleled since 2009. Amnesty have revealed that at least one of the prisoners executed in the spree was imprisoned in connection with the Woman Life Freedom protests that erupted following the murder of Mahsa Amini in 2022.
The Bulgarian Parliament passed an anti-LGBT amendment last Wednesday to the country’s education laws, banning the “propaganda, promotion, or incitement in any way, directly or indirectly, in the education system of ideas and views related to non-traditional sexual orientation and/or gender identity other than the biological one.” The amendment was passed by an overwhelming majority with 159 votes in favour and only 22 against. LGBT rights group Forbidden Colours have stated they believe the move represents Bulgaria “adopting tactics from Russia’s anti-human rights playbook”, a development they call “deeply troubling”. The organisation have also raised questions about the swiftness with which the amendment occurred, both readings occurring on a single day – raising “serious concerns about the legislative process and the intent behind such haste”. A spokesperson for the EU Commission told POLITICO last Thursday that while the EU is aware of the amendment, they were unable to comment. The spokesperson however reiterated that the Commission “remains steadfast in its commitment to tackling discrimination, inequalities and challenges faced by LGBTIQ individuals.”
In the Courts
Last Wednesday, the UK Supreme Court rejected Shamima Begum’s permission to further appeal the removal of her British citizenship. Ms Begum appealed on four grounds: trafficking, invoking Article 4 ECHR; deprivation of the right to make representations; a failure to ensure good community relations, required per s.149 of the Equality Act; and de facto statelessness. Permission to appeal was refused on all four grounds, concluding that “the grounds of appeal do not raise an arguable point of law”. In response to the ruling, Maya Foa, director of human rights NGO Reprieve, has stated that “exiling British nationals like Ms Begum is about politics, not the law”. The decision signifies the exhaustion of Ms Begum’s legal remedies in the UK. However, Ms Begum’s lawyers told the BBC that they intend to take the case to the European Court of Human Rights in Strasbourg.
The Dublin High Court found last week that the Irish Government’s treatment of asylum seekers breaches the EU Charter of Fundamental Human Rights. Mr Justice Barry O’Donnell stated in judgment that in failing to support the accommodation needs of applicants for asylum, “the State has breached the rights of those persons as provided for in Article 1 of the Charter of Fundamental Rights of the European Union” – the right to human dignity. It was held that central to respecting the human rights of asylum seekers is the maintenance of “an adequate standard of living which guarantees their subsistence and protects their physical and mental health where they do not have the means to provide for themselves”.The judgment has been welcomed by the UN Refugee Agency, who have now called on the Irish Government to take “immediate action”. The Court did, however, decline to grant the mandatory orders sought by the applicants, the Irish Human Rights and Equality Commission, on the basis that it was not satisfied that there was evidence the Government would ignore its obligations.
US federal judge Mark Walker ruled last Thursday in Claire v Florida DMS that Florida’s ban on transgender healthcare access for state employees violates their civil rights. Florida has had a categorical ban on coverage of healthcare for “gender reassignment or modification services or supplies” of state employees for decades, which has now been found to be in violation of Title VII of the Civil Rights Act of 1964 as a form of unlawful discrimination on grounds of sex since it denies transgender employees coverage for medically necessary treatment for gender dysphoria. Quoting a judgment from 2020, Judge Walker reiterated that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex” as “the first cannot happen without the second”. The American Civil Liberties Union (ACLU) praised the judgment in a press release, with Staff Attorney Samantha Past stating that “discrimination has no place” in Florida. The ACLU “are hopeful that this decision will encourage a commitment from the state to treating members of the transgender community with the respect they deserve”.
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5 August 2024 by Emma-Louise Fenelon
Robert Mills takes listeners through three recent cases on material contribution:
- CNZ v Royal Bath Hospitals NHSFT & The Secretary of State for Health and Social Care [2023] EWHC 19 (KB)
- CDE v Surrey and Sussex Healthcare NHS Trust [2023] EWCA Civ 1330
- Holmes v Poeton Holdings Ltd [2023] EWCA Civ 1377
John Whitting KC outlines developments in the law of informed consent:
- Bilal and Malik v St George’s University Hospital NHS Foundation Trust [2023] EWCA Civ 605
- McCulloch and others v Forth Valley Health Board [2023] UKSC 26
And the episode concludes on a discussion of expert evidence:
- Woods v Doncaster and Bassetlaw Teaching Hospitals NHS Foundation Trust [2024] EWHC 1432 (KB)
- CE (Cameroon) [2023] UKAITUR PA011122020
The podcast has previously covered expert evidence in the following episodes:
- Disaster Avoidance for Experts with Margaret Bowron KC here
- Disaster Avoidance for Experts with Neil Sheldon KC here
Law Pod UK is published by 1 Crown Office Row. Supporting articles are published on the UK Human Rights Blog. Follow and interact with the podcast team on Twitter.
Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM, ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to your podcasts.
Please remember to rate and review us if you like what you hear.
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5 August 2024 by Emilia Cieslak
In UK news
The Minister for Immigration and Citizenship, Seema Malhotra has announced the opening of the Afghan Citizens Resettlement Scheme Pathway 1 Stage 2: Separated Families. This is a reunification scheme for families separated during Operation Pitting. This was the operation in which vulnerable people such as the LGBT community, women’s rights activists and judges were evacuated from Kabul by the British government after the Taliban takeover of Afghanistan in August 2021. Persons resettled in the UK can submit an “expression of interest” to be reunited with a spouse or unmarried partner or their dependent children aged under 18 at the time of the evacuation. Children separated from their parents during the evacuation can apply to be reunited with their parents and siblings aged under 18 at the time of the evacuation. The Scheme is open now and the deadline to submit an “expression of interest” is 30 October 2024.
The Secretary of State for the Home Department, Yvette Cooper has announced that the Migration Advisory Committee (MAC) has been asked to review, among other things, the minimum income requirement for family and partner visas. The minimum income requirement rose from £18,600 per year to £29,000 per year in April 2024, and it is planned to rise to £34,500 later this year and £38,700 in 2025. The Home Secretary stated that the MAC review will make sure that the Immigration Rules “balance a respect for family life whilst also ensuring the economic wellbeing of the UK is maintained”. The campaign group Reunite Families UK has launched a legal challenge against the planned rise to £38,700 per year, arguing, among other things, that it will disproportionately impact women, members of ethnic minorities and young people.
In international news
As the civil war in Sudan continues, reports are coming out regarding famine and mass sexual violence. The UN’s World Food Programme (WFP) has identified 14 areas at risk of famine, including conflict hotspots Darfur and Khartoum. The WFP estimates that 26 million people, more than half the population, are now facing acute hunger and 755,000 people are facing catastrophic conditions with deaths caused by starvation already being recorded. Human Rights Watch has published a report documenting widespread rape and sexual abuse committed by the warring parties, in particular the Rapid Support Forces, with local healthcare providers reporting survivors of sexual violence between the ages of 9 and 60. An explainer on the origins of the conflict is available here.
On 01 August 2024, the EU AI Act (also known as Regulation 2024/1689), the world’s first piece of legislation on artificial intelligence, entered into force. The act splits the different uses of AI into four categories each with a different level of regulation. Category one are video games and spam filters which pose minimum risk and so are not regulated. Category two are chatbots, deepfakes and other uses which present issues regarding transparency. The regulation will require developers to make sure users are aware that they are interacting with AI. Category three are high risk uses such as transport, marking exams, recruitment and granting of loans, which will be strictly regulated. Category four are unacceptable risk uses such as social scoring, predictive policing, emotional recognition and cognitive behavioural manipulation, which are banned in their entirety under the act. The bans on prohibited practices will be applied in the first six months of the Act being passed, and the other regulations will be brought in over the next two years.
The International Criminal Court has allowed individuals and states to submit amicus curiae briefs regarding its upcoming decision whether or not to issue arrest warrants for Israeli PM Benjamin Netanyahu and Israeli Minister of Defence Yoav Gallant. The UK was the first state which declared that it would provide a brief arguing against the issuing of an arrest warrant, however, the government has since announced that it will be dropping their challenge. All amicus curiae briefs regarding this matter are available here. The UN Human Rights Office has published a report regarding arbitrary and prolonged detention of Palestinians by the State of Israel. Detainees report abuse including blindfolding, deprivation of food, electric shocks, being burnt with cigarettes and sexual violence against both men and women.
American journalist Evan Gershkovich has been released by Russia in the biggest prisoner swap between the USA and Russia since the Cold War. In March 2023, Gershkovich was arrested by Russia’s Federal Security Service on espionage charges and sentenced to 16 years in prison. His arrest and subsequent sentence was condemned by leading human rights organisations and UN Special Rapporteurs on human rights in the Russian Federation and the right to freedom of opinion and expression. The prisoner swap saw the release of 16 people from Russia, including influential opposition figure Vladimir Kara-Murza, journalist Alsu Kurmasheva and activist Sasha Skochilenko who was sentenced to seven years in a penal colony for affixing anti-war stickers on supermarket shelves as a form of protest. The USA released Russian detainees including Vadim Krasikov, a hitman who worked for Russia’s Federal Security Service.
In the courts
The High Court has ruled that the emergency ban on the use of puberty blockers as medication for trans children through private and EU prescriptions is lawful. The campaign group TransActual and an anonymous 14-year-old trans girl now unable to access puberty blockers, sought to challenge the ban arguing, amongst other things, that the Secretary of State did not have sufficient medical evidence to institute the ban. The court held that the Secretary of State was entitled to rely on the Cass Review, which recommended a clinical trial to determine the effects of puberty blockers, and held that “this decision required a complex and multi-factored predictive assessment, involving the application of clinical judgment and the weighing of competing risks and dangers, with which the Court should be slow to interfere”. The court also dismissed arguments that the ban was introduced with an unfair failure to consult and arguments based on Article 8 ECHR. In response to the ruling the British Medical Association (BMA), the trade union and professional body for doctors and medical students in the UK, has called for a pause in the implementation of the Cass Review and questioned the “weaknesses in the methodologies used in the [Cass] Review”.
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25 July 2024 by Rosalind English
A tale of small win against airline leads to big Supreme Court ruling on pre- and post- Brexit compensation. In Episode 203, Rosalind English discusses with David Hart KC the veritable maze that must be navigated to establish legal rights between January 2020 when the UK left the EU and end of December 2020 when the various phases of disengaging from EU law were assimilated into the Withdrawal Acts.
Law Pod UK is published by 1 Crown Office Row. Supporting articles are published on the UK Human Rights Blog. Follow and interact with the podcast team on Twitter.
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23 July 2024 by Shaheen Rahman
R (World Uyghur Congress) v National Crime Agency [2024] EWCA Civ 715
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.
Shaheen Rahman KC is a barrister at 1 Crown Office Row Chambers
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22 July 2024 by Catherine Churchill
In UK News
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’.
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15 July 2024 by Jim Duffy
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.
Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM, ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to your podcasts.
Please remember to rate and review us if you like what you hear.
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15 July 2024 by Emilia Cieslak
In UK news
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.
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8 July 2024 by Kate Litman
In UK news
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.
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8 July 2024 by Angus McCullough KC
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.
Angus McCulllough KC is a barrister at 1 Crown Office Row Chambers.
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3 July 2024 by Emma-Louise Fenelon
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.”
Emma Snell is a Senior Legal Fellow at JUSTICE.
Christian Weaver is a barrister at Garden Court North Chambers and the author of The Law in 60 seconds: A Pocket Guide to Your Rights, and of the upcoming Your Right to Protest: Understand It, Use It. For those interested in other publications from INQUEST, see here
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