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The Colston Four have been acquitted of criminal damage by a jury for their role in pulling down the statue of Edward Colston in Bristol and pushing it into Bristol Harbour during a Black Lives Matter protest in June 2020. Under the Criminal Damage Act 1971, a defendant will have a defence to criminal damage if they can prove they had a ‘lawful excuse’ for their actions. In this case, the four defendants put forward three lawful excuses. First, they argued that they had been acting to prevent the crime of public indecency which was being committed in the retention of the statue after 30 years of petitions to remove it, given the serious offence and distress it caused. Relatedly, they contended that Bristol County Council had committed misconduct in failing to take it down, but this was withdrawn from the jury by HHJ Peter Blair QC as there was insufficient evidence. Second, they argued that they genuinely believed the statue was the property of Bristol citizens, and that those citizens would consent to the statue being pulled down. Finally, they contended that a conviction would be a disproportionate interference with their rights under Articles 10 and 11 of the European Convention on Human Rights (to freedom of expression and assembly). The verdict has been criticised by some as a politically motivated decision which has no proper basis in law, and a petition to retry the protesters has received over 13,000 signatures. Supporters of the Colston four maintain on the other hand that their excuses have a real foundation in the law, and that therefore it had been open to the jury to find the defendants not guilty.
The approach of juries in protest cases has come under further scrutiny in light of the new proposal in the Police Crime, Sentencing, and Courts Bill to increase the maximum sentence for the damage of memorials to 10 years imprisonment, irrespective of the cost of the damage. The increase in sentence means that all cases would necessarily be tried by a jury, which some legal commentators have suggested makes it more likely that perpetrators will go free.
Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: Lorie Shaull
Anti-racism protests, sparked by the death of George Floyd, continued across the world. This week much of the focus has been on statues commemorating controversial historical figures. In Bristol, campaigners toppled the statue of a 17th century slave trader called Edward Colston.
The move led to a debate about what ought to be done with such statues. The founder of the Scouts, Robert Baden-Powell, was accused of racism, homophobia, and anti-Semitism. Initially it seemed his statue would be put into storage, but following an outcry it has been boarded up instead. A number of other figures have received similar treatment, including Sir Winston Churchill.
In the US, it seems change is coming to policing. The Democratic Party is proposing a police reform bill which, if passed, would become the Justice in Policing Act of 2020. The Bill would ban chokeholds from being used, limit the use of military weapons, and restrict qualified immunity (the legal principle which has prevented many officers from being sued for alleged misconduct). President Trump confirmed that he ‘generally’ supported ending the use of chokeholds.
The Intelligence and Security Committee found that the UK had allowed terrorism suspects to be treated unlawfully.
Following a three-year investigation, it published two reports examining the extent to which Britain’s intelligence agencies were aware of the mistreatment of suspects. The reports found no evidence that British officers took part in the torture themselves. Neither was there clear evidence of a policy which sought to deliberately overlook mistreatment.
However, the Committee found that British intelligence officers had witnessed prisoners being tortured. They had seen detainees being mistreated at least 13 times, were told by prisoners that they were being abused at least 25 times and were informed of ill-treatment by foreign agencies 128 times. British agents also threatened detainees in nine cases.
Despite being aware of the mistreatment from an early stage, UK agencies continued to provide questions for interrogations. The Committee chairman, Dominic Grieve, said that the UK had tolerated ‘inexcusable’ actions.
Furthermore, British agencies assisted in the rendition of suspects to countries with ‘dubious’ human rights records. MI5 and MI6 subsidised, or offered to subsidise, the rendition of individuals on three occasions. They also provided information for the rendition of 28 people, proposed/ agreed to rendition in 22 cases and failed to stop the rendition of 23 others (including cases involving British nationals). Continue reading →
The patient in these proceedings was a woman in her thirties (“B”). She suffers a learning disability and epilepsy and has considerable social care needs. She currently lives at home where she spends much of her time watching television. She struggles to manage her personal care and hygiene, and, in the judge’s words, she is “grossly overweight.”
She is prone to confrontational behaviour when challenged, and can be physically aggressive. She is assessed as requiring support to maintain her safety when communicating with others; when she receives information which she does not want to hear, she often becomes dismissive, verbally aggressive and refuses to engage.
This hearing concerned her capacity to litigate in these proceedings, to manage her property, to decide where she resides and her package of care, and to decide with whom she has contact. The main focus of the judgment was on the question that arose in the “A” case , as to the capacity of the patient to use the internet and communicate by social media. Closely related to this was the issue of her capacity to consent to sexual relations. Continue reading →
A spokesman for the Taliban has said that working women must stay at home for their own safety as “a very temporary procedure” until systems are in place to ensure their safety. The spokesman also told Afghans not to go to Kabul airport and said the US should not encourage them to leave Afghanistan.
Last week, the former head of religious police for the Taliban confirmed that punishments such as execution and amputation would return to Afghanistan. Prior to the takeover of Kabul, a Taliban judge told the BBC that Sharia law was clear and included punishments of 100 lashes in public for sex out of marriage, being stoned to death for adultery, and “[f]or those who steal: if it’s proved, then his hand should be cut off.”
On Saturday it was reported that the Taliban hung the bodies of four alleged kidnappers from cranes in Herat city square, before moving them to other areas of the city for public display. An unidentified Taliban commander said the aim was “to alert all criminals that they are not safe”.
Does the current jurisprudence on Article 1 of the ECHR create potential human rights problems in the Syrian conflict?
by David Scott
Reports of two British citizens killed by RAF drone strikes in Syria last week have thrown up a whole host of ethical and legal questions. Former Attorney General Dominic Grieve has already suggested the decision to launch the attack could be “legally reviewed or challenged”, while Defence Secretary Michael Fallon has made clear that the UK would not hesitate to launch such attacks in the future.
A speech by Mark Rowley (the outgoing Assistant Commissioner of the Metropolitan Police for Specialist Operations and National Lead for Counter Terrorism Policing) to Policy Exchange has been given the front page treatment with headlines like, “Extremists should lose access to their children.” The speech has been made available in full by the Policy Exchange on their website and on Youtube.
Additionally, The Times quotes Mark Rowley as saying, in response to questions from the press in advance of the speech,
We still see cases where parents convicted of terrorist-related offences, including radicalisers, retain care of their own children.
If you know parents are interested in sex with children, or if you know parents believe that people of their faith or their belief should hate everybody else and corrupt children for it, for me those are equally wicked environments to expose children to.
The speech is phrased more tentatively but included this passage,
The family courts and social services now routinely wrestle with child protection and safeguarding cases arising out of terrorism and extremism. However, we still see cases where parents convicted of terrorist-related offences, including radicalisers, retain care of their own children. I wonder if we need more parity between protecting children from paedophile and terrorist parents.
On Thursday, Harry Dunn’s family were granted permission to appeal against the High Court ruling handed down on 24 November, which held in no uncertain terms that Mrs Sacoolas did enjoy diplomatic immunity at the time she killed 19 year-old Harry Dunn while driving on the wrong side of the road in August of last year. The US state department has refused to waive her immunity under Article 32 of the Vienna Convention on Diplomatic Relations, stating that to allow the waiver, and thereby the extradition request that would inevitably follow would set an “extraordinarily troubling precedent”. The arrests of diplomats Michael Kovrig in China and Rob Macaire in Iran over the last year highlight the continued importance of the inviolability of diplomatic agents serving abroad. However, where there has been an unlawful killing by a family member of an agent, natural inclinations of justice are upset by the failure of a longstanding diplomatic ally to simply do the right thing.
On Wednesday, Boris Johnson gave oral evidence to the Privileges Committee as part of an ongoing inquiry into whether the ex-Prime Minister misled Parliament over lockdown parties in No 10. If the Commons was misled, the Committee will determine whether that constituted a contempt of Parliament – a finding which could result in Mr Johnson’s suspension from the Commons. In his evidence, Mr Johnson accepted he mislead MPs, but that he had not done so “intentionally or recklessly”. He claimed his statements were based upon honest belief, and were made in ‘good faith’ and in reliance on ‘trusted advisers’. The outcome of the inquiry will largely rest on whether Mr Johnson inadvertently, deliberately, or recklessly mislead Parliament – with the most severe sanctions arising if he is found to have deliberately made false statements to MPs. The committee’s report is expected later in the year.
Baroness Casey’s final report on the standards of behaviour and internal culture of the Metropolitan Police Service was published this week. The review was commissioned following the death of Sarah Everard at the hands of a serving Met officer. The report describes a culture in the Met of ‘defensiveness and denial’, which lacks integrity, fails to take complainants seriously and has discrimination ‘baked into it’. In Baroness Casey’s own words: ‘we have found institutional racism, misogyny and homophobia in the Met’. This report, alongside tragic events like Ms Everard’s death and the recent conviction of long-serving Met officer David Carrick, highlight a loss of public confidence in the police force.
In France on Thursday, protesters gathered across the country to demonstrate their opposition to President Macron’s pension reform bill, which proposes raising the age of retirement from 62 to 64. The protests began in January, but escalated this week when President Macron forced the proposed bill through parliament without a vote in the National Assembly. It is estimated that approximately one million people took part in the demonstrations. In Bordeaux, the front door of the city’s town hall was set on fire and police have been accused of using excessive force against protesters. Before the bill becomes legislation, it must pass a review by the Constitutional Council.
A bank requires its would-be recruits and some of its existing employees to undergo a medical. It sends them to the home of one particular, self-employed doctor. There, they undergo a medical examination, unaccompanied by anyone from the bank.
The doctor completes the bank’s proforma examination form, headed with its logo and entitled “Barclays Confidential Medical Report”. The form is detailed. It includes sections on chest “Inspiration” and “Expiration”, “Abdomen (including Genito-Urinary System)”. It contains a section for “Female applicants only”, asking whether they have suffered from menstrual or pregnancy disorders.
The doctor – Gordon Bates – subsequently dies. A large group of women sue the bank alleging that it is liable for sexual assaults carried out by the doctor during the examinations. The question for the Court of Appeal in Barclays Bank plc v Various Claimants[2018] EWCA Civ 1670 was whether the bank could be vicariously liable.
Background
Following Dr Bates’ death in 2009, 126 women came forward alleging that he had abused them during medical examinations carried out on behalf of Barclays between around 1968 and 1984. The police concluded in 2013 that, had he been alive, there would have been sufficient evidence to pursue a criminal prosecution against him.
The Appellant in R (on the application of Elan-Cane) (Appellant) v Secretary of State for the Home Department (Respondent) [2021] UKSC 56 was assigned female at birth, however during and after puberty they felt revulsion at their body and underwent surgery in 1989 and 1990 to alleviate those feelings. The Appellant who identifies as non-gendered, is a campaigner for the legal and social recognition of this category. The provision of “X passports” are a focal point of the Appellant’s campaign.
In this carefully nuanced judgment, the Court of Protection has ruled that although a patient with a chronic eating disorder would in all probability face death she did not gain weight, it would not be in her best interests to continue being subjected to forced feeding inpatient regimes.
AB is a 28 year-old woman who has over many years suffered from anorexia nervosa. She was first diagnosed when she was a teenager of 13 and now has a formal diagnosis of a Severe and Enduring Eating Disorder (‘SEED’).
The NHS Trust and the team of treating clinicians who have been responsible for providing care for AB applied to the COP for declaratory relief pursuant to ss 4 and 15 of the Mental Capacity Act 2005 in these terms: (i) it is in AB’s best interests not to receive any further active treatment for anorexia nervosa; and that (ii) AB lacks capacity to make decisions about treatment relating to anorexia nervosa.
Issues before the Court
Litigation capacity: it was not in issue that AB did have the capacity to instruct her solicitors.
General capacity: this was a more difficult question to be decided under Section 3 of the Mental Capacity Act. The key question was, did she have the mental capacity to make a decision about the specific medical treatment proposed. Roberts J had to decide one way or another on whether she should be tube fed, probably under sedation (otherwise she would remove the tube).
The Trust argued that she did not have this capacity, relying on evidence from AB’s treating psychiatrist Dr B. AB said she did have this capacity.
Best interests: was it in AB’s interests to discontinue any tube feeding? The unanimous professional view of her treating team was that palliative care and no further tube feeding was in her best interests. However, since the decision not to have any further forced feeding was a life-threatening one, the case had to be referred to the Court of Protection.
Constitutional Futures 2015 – 2025 – a vignette, and comment
January 1, 2025
As the first day of 2025 dawns the people of the Kingdom of England wake looking forward to the arrival of their new passports, issued by the United States of… America. Governor Farage’s message is unusually sober, encouraging, almost apologetic:
While we had hoped to make our future with the Commonwealth, despite our best efforts, and the tireless advocacy of the Royal Family, we must acknowledge that our former friends are content with their lives and more local partners. We thank Her Majesty, and her family, for their service. We wish them well with their continued public service in Scotland, Canada and elsewhere.
While the bargain our NAFTA partners have struck is a bracing one, it is one which I believe we can live with, and indeed thrive under. As the fifty-first state, the first to join since Hawaii in 1959, we rejoin friends older than the New Zealanders, Australians, Canadians; we go back to our shared Mayflower roots.
President Clinton assures me that she expects Baroness Hale to be confirmed to the Supreme Court. I’m sure she will do great work weaving British principles into our new shared constitution.
With representatives in the House, and Senators Cameron and Umuna in the Senate, we can look forward to a prosperous future as a new and vital part of a nation we can claim have been with, in some ways, since it began.
Alex Wessely brings us the latest edition of the Human Rights Round-up
In the news
Planned increases in court fees have been given the green light after successfully clearing the House of Lords. As the Law Gazette reports here a 5% charge will be added to all civil claims valued above £10,000, with an aim to raise £120m per year for the court service. ObiterJ writes that “for many people in need of the law, access to justice will now be a forlorn hope”. Whereas Lord Faulks, a Minister behind the reforms, argued that litigation is “very much an optional activity”, this was disputed by Lord Pannick – “litigation is often a necessity to keep your business alive or to maintain any quality of life”. Joshua Rozenberg, writing in the Guardian, bemoans the lack of attention paid to these significant increases, which shows that “the public has very little interest in what is being done in its name”.
G v E and others [2010] EWCA Civ 822 – Read judgment
This post was written with the kind help of Jaime Lindsey
The Court of Appeal has held that a person who lacks mental capacity can be detained if the Court of Protection considers that it is in their best interests, without having to meet additional conditions under Article 5 of the European Convention on Human Rights.
This case was a challenge to the decision of Jonathan Baker J in the Court of Protection and raises issues about the relationship between ECHR Article 5 (right to liberty and security) and the Mental Capacity Act 2005 (MCA). It reinforces the point that it is for the Court to decide what is in an incapacitated patient’s best interests, and that Article 5 imposes no further requirements.
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A bank requires its would-be recruits and some of its existing employees to undergo a medical. It sends them to the home of one particular, self-employed doctor. There, they undergo a medical examination, unaccompanied by anyone from the bank. 
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