Category: Roundup


Round Up: Should short term jail sentences be abolished? Plus rulings on Universal Credit and judicial pensions.

14 January 2019 by

Conor Monighan brings us the latest updates in human rights law

In the News:

prison

Credit: The Guardian

The Government is considering whether to abolish prison sentences lasting six months of less.

Rory Stewart, the Prisons Minister, has argued that short jail terms are only serving to increase crime by mixing minor offenders with hardened criminals. He cited research suggesting that community sentences may help reduce the risk of reoffending when compared to short term prison sentences.

In Scotland there is already a presumption against such sentences. Re-offending has fallen to its lowest level for nearly two decades and the Scottish government are looking to widen the scheme.

The change would impact upon around 30,000 offenders, helping alleviate pressure on the overburdened prison system. Exceptions would be made for offenders who were violent or had committed sexual crimes.

The suggestion has already proven controversial. The Ministry of Justice has emphasised it is only exploring options and no decision has been made.

In Other News….

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The Round Up: Should veganism be protected by the Equality Act?

10 December 2018 by

Conor Monighan brings us the latest updates in human rights law

Vegan.jpg

Credit: The Guardian

In the News:

This week saw a novel legal challenge which may have significant consequences for the Equality Act 2010. The case arose following the dismissal of Jordi Casamitjana by the League Against Cruel Sports on the grounds of gross misconduct. This was because he released information showing that the pension fund of employees was being invested in firms engaging in animal testing. However, Mr Casamitjana claims he was discriminated against by his former employer because he is vegan.

Mr Casamitjana alleges that he first raised his concerns about the pension investments internally. He says the charity responded by offering staff an alternative ‘ethical’ investment strategy with lower rates of return. Mr Casamitjana subsequently wrote to colleagues saying that their money was still being invested in non-ethical funds, and that there were other alternative investments available with good financial outcomes.

Mr Casamitjana argues that his sacking was due to the charity discriminating against his belief in ‘ethical veganism’. The League strongly deny the allegations and have stated Mr Casamitjana was dismissed purely because of gross misconduct.

The dispute means that an employment tribunal will have to decide whether veganism is a ‘belief’ which should be protected by the Equality Act 2010. It is thought to be the first time this issue has been raised. The ruling could have significant consequences for the provision of goods and services, as well as on employment rights more generally. However, others have warned that recognising too many views as protected characteristics would be excessively restrictive.
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The Round Up: Criminal Sentencing, Assisted Suicide and a warning to Facebook

3 December 2018 by

In the Courts:

Conway, R (on the application of) v Secretary of State for Justice [2018] UKSC B1: The Supreme Court has refused to hear an appeal from a sufferer of motor neurone disease, in the latest of a line of challenges to the UK’s ban on assisting suicide. The applicant was contesting the Divisional Court’s refusal to declare the statutory ban on assisting suicide to be incompatible with his article 8 rights.

The question for the court was whether his case raised “an arguable point of law of general public importance” which ought to be heard by the Supreme Court at this time. Whilst the points of law were undoubtedly arguable, and the public importance obvious, the court concluded “not without some reluctance” that the applicant’s prospects of success did not justify granting permission to appeal. Rosalind English has more detail here.

Stott, R (on the application of) v Secretary of State for Justice [2018] UKSC 59: The appellant was a prisoner who had been classed as ‘dangerous’ and accordingly given an Extended Determinate Sentence (EDS), under which he would become eligible for parole only after serving two-thirds of the appropriate custodial term. This was in various ways narrower than the ordinary parole eligibility of other categories of prisoner. The appellant claimed unlawful discrimination under Article 14 ECHR, combined with Article 5 (the right to liberty).

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Round Up- Civil Partnerships for all and the Unlawfulness of Hardial Singh.

8 October 2018 by

Conor Monighan brings us the latest updates in human rights law

Marriage-009

Credit: The Guardian

In the News:

The Government has announced that civil partnerships will be available to all couples, not just those which are same-sex. The government has said the move will address the “imbalance” of the current system. It will also provide a way of giving couples and their families greater security.

Concerns have previously been raised about the precarious state of cohabiting couples, many of whom incorrectly believe they possess similar rights to married couples. Widening access to civil partnerships may go some way to solving this issue.

Civil partnerships were originally created in 2004, and offer homosexual couples legal and financial benefits resembling those available under a marriage. Marriage for same-sex couples was subsequently legalised by the Marriage (Same Sex Couples) Act 2013, giving them a free choice between the two.

The proposed change comes in response to R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development, which was decided by the Supreme Court in June. There, the court ruled that precluding mixed-sex couples from entering into a civil partnership was incompatible with Article 14 ECHR (when read in conjunction with Article 8). The Civil Partnership Act 2004 will, therefore, need to be amended or replaced.
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The Round Up: attempted murder, mass data collection, and what the Vote Leave judgement really said.

17 September 2018 by

Skripal

Credit: The Guardian

Conor Monighan brings us the latest updates in human rights law

In the News:

The CPS has said there is enough evidence to charge two Russian men with conspiracy to murder Sergei and Yulia Skripal.  Although the Skripals survived, another lady called Dawn Sturgess later died of exposure to Novichok.

The two men visited Salisbury last March, at the same time the nerve agent attack took place. It is believed the two men, Alexander Petrov and Ruslan Boshirov, are military intelligence officers for GRU, the Russian security service.  The CPS has not applied for their extradition because of Russia’s longstanding policy that it does not extradite its own nationals. A European Arrest Warrant has been obtained in case they travel to the EU.

In response, the two men have claimed they were merely tourists. In an appearance on Russia Today (RT), they said the purpose of their visit to Salisbury was to see its cathedral. Arguing that their presence was entirely innocent, the two men said they were following recommendations of friends. Petrov and Boshirov went on to say that, whilst they had wanted to see Stonehenge, they couldn’t because of “there was muddy slush everywhere”. The men insisted they were businessmen and that, whilst they might have been seen on the same street as the Skripals’ house, they did not know the ex-spy lived there. The Russian President, Vladimir Putin, has said they are “civilians” and that “there is nothing criminal about them”.
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The Round-Up: Constitutional Commotions, Council Housing and Article 8, and the A6 Compatibility of ASBO Legislation

27 May 2018 by

Yes campaigners react as they wait at Dublin Castle for the official result of the Irish abortion referendum

Image Credit: The Guardian

In a landmark moment for women’s rights, the Irish electorate has voted in favour of abolishing the 8th Amendment by a stunning two-thirds majority of 1,429,981 votes to 723,632.

Whilst abortion has long been illegal in Ireland under the Offences Against the Person Act 1861, the notorious 8th Amendment, which gives the foetus’ right to life absolute parity with that of the woman carrying it, was enacted after a 1983 referendum lobbied for by pro-life activists. By virtue of the amendment:

“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Lawyers for Yes emphasised that the amendment created ‘absolute legal paralysis in dealing with crisis pregnancies’ and had to be repealed if women in Ireland were to receive ‘appropriate’ and ‘compassionate’ healthcare. Also on the UKHRB, Rosalind English shares a powerful analysis of the extraordinary nature of the legal obligations imposed on women’s bodies by this provision.

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The Round Up: Grenfell, lost DVDs, and a Deputy Judge who erred in law.

21 May 2018 by

Conor Monighan brings us the latest updates in human rights law.

Grenfell

Credit: The Guardian

In the News:

An independent report into building regulations, commissioned by the government in the wake of the Grenfell disaster, has called for the current regulatory system to be overhauled.

However, the report surprised some because it did not recommend a ban on flammable cladding. It also declined to recommend stopping so-called ‘desktop studies’, where materials are tested without setting them on fire. The chairman of Grenfell United expressed disappointment at this conclusion. The Royal Institute of British Architects expressed support for banning inflammable cladding and the government has said it will consult on the issue. The Prime Minister has also pledged £400 million to remove flammable cladding from tower blocks.

The author of the report, Dame Judith Hackitt, said that banning the cladding was insufficient. Instead, she stated that a ‘whole system change’ is needed. Dame Hackitt warned that cost was being prioritised over safety and that ‘banning activities and particular materials […] will create a false sense of security’.

The report recommended fundamental changes to building regulations, saying that the process which drives compliance with the regulations are ‘weak and complex’. Dame Hackitt found that there was a ‘race to the bottom’ in the building industry that was putting people at risk. She also wrote that product testing must be made more transparent, and that residents’ voices were not being listened to.

The Grenfell Inquiry will open this week. For the first two weeks, the lives of those who died will be remembered in a series of commemorations.
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The Round-Up: Snooper’s Charter, Coroner’s Cab-Rank Ruling, and Foul Play with Freedom of Information

30 April 2018 by

A woman in a room of servers

Image Credit: Guardian

The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor: Liberty’s challenge to Part 4 of the Investigatory Powers Act, on the ground of incompatibility with EU law, was successful. In particular, Liberty challenged the power bestowed on the Secretary of State to issue ‘retention notices’ requiring telecommunications operators to retain communications data for up to 12 months (detail at [22]). This engaged three EU Charter rights: the right to private life, protection of personal data, and freedom of expression and information.

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Round Up- Do trained lawyers have a human right to represent themselves in court?

9 April 2018 by

Conor Monighan brings us the latest updates in human rights law

The High Court, Court of Appeal and Supreme Court are not sitting at present (Easter Term will begin on Tuesday 10th April). Accordingly, this week’s Round Up focuses largely on the ECHR.

European-court-of-human-r-009

Credit: The Guardian

Correia De Matos v. Portugal

This week, the ECHR held that requiring defendants to have legal representation does not violate Article 6. The vote was split by nine votes to eight.

The applicant, a lawyer by training, alleged a violation of Article 6 s.3(c) of the Convention. This was on the basis of a decision by Portuguese domestic courts which (i) refused him leave to conduct his own defence in criminal proceedings against him, and (ii) required that he be represented by a lawyer.
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The Round-Up: Worboys Ruling Strikes a Blow to Parole Board Privacy, Criminal Bar to Strike over Legal Aid Cuts, and Did Vote Leave Breach Election Law?

2 April 2018 by

John Worboys is escorted in handcuffs into the royal courts of justice.

Image Credit: Guardian

R (On the application of) DSD and NBV & Ors v The Parole Board of England and Wales & Ors & John Radford: in a landmark ruling, the High Court has quashed the Parole Board’s decision to release black cab driver and serial sex offender John Worboys, on grounds of irrationality. The Board acted irrationally in that it “should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability” [201].

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The Round-Up: Government wins benefits cap appeal, the scope of employee misconduct, and international crimes against humanity

19 March 2018 by

Baby holds a woman's finger

Image credit: Guardian

DA & Orss, R (On the Application Of) v The Secretary of State for Work and Pensions: The Court of Appeal by a 2:1 majority allowed the government’s appeal against a ruling that their benefits cap unlawfully discriminated against lone parents with children under the age of two.

Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle [135]. He concluded:

the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.

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The Round Up – Strikes, detainees, and was it a poison plot?

11 March 2018 by

Conor Monighan brings us the latest updates in human rights law

Abbott

Photo credit: The Guardian

In the News:

Over 100 female detainees have gone on hunger strike at Yarl’s Wood Immigration Removal Centre.

The women began their strike on the 21st February, over “inhuman” conditions, indefinite detentions, and a perceived failure to address their medical needs. The UK is the only European state that does not put a time limit on how long detainees can be held.

This week, the strikers were given a letter from the Home Office warning their actions may speed up their deportation. Labour criticised the letter, but Caroline Nokes, the Immigration Minister, said the letter was part of official Home Officer guidance and was published last November on its website.
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The Round-Up: Deportation by Data Deals, Dubs, and a Step Towards Decriminalising Sex Workers

5 March 2018 by

A doctor looks at a patient’s readings on a health monitor.

Photo credit: Guardian

In the News

UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.

Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.

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Round Up: Worboys, air pollution, and Germany’s social media law

25 February 2018 by

In the News:

taxi

Credit: Garry Knight, Flickr

Commissioner of Police of the Metropolis v DSD

The Supreme Court ruled that the police have a positive obligation to conduct an effective investigation into crimes involving serious violence to victims, in line with Article 3 of the ECHR.  In this case the obligation had been breached.

The case concerned the police’s investigation into the ‘black cab rapist’, John Worboys. Two of his victims brought a claim for damages against the Commissioner of the Metropolitan Police Service (MPS), on the basis of an alleged failure of the police to conduct an effective investigation into Worbys’ crimes. The victims were awarded compensation in the first instance. The Court of Appeal dismissed the MPS’ appeal, and the case came before the Supreme Court.
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The Round Up: Instagramming claim forms, procedural unfairness, and what happens when ‘pragmatism’ meets human rights.

11 February 2018 by

Conor Monighan brings us the latest updates in human rights law.

Image result for police lady uk

Credit: Wiki Commons

In the News:

Robinson v Chief Constable of West Yorkshire

Covered by the Blog here

There is no general immunity for police officers investigating or preventing crime. In this case, Mrs Robinson suffered injuries when two police officers fell on top of her, along with a suspected drug dealer resisting arrest. The officers had foreseen Williams would attempt to escape but had not noticed Mrs Robinson  (who was represented by 1 Crown Office Row’s academic consultant Duncan Fairgrieve).

The recorder found that, although the officers were negligent, Hill v Chief Constable of West Yorkshire [1989] gave them immunity from negligence claims. The Court of Appeal ruled the police officers owed no duty of care, and even if they did they had not broken it. It also found most claims against the police would fail the third stage of the Caparo test (i.e. it would not be fair, just and reasonable to impose a duty of care upon the police in these situations). The Court found Williams had caused the harm, not the police, so the issue was based on omission rather than a positive act. Finally, even if officers had owed the Appellant a duty of care, they had not breached it.

Mrs Robinson appealed successfully to the Supreme Court.

It held:
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