High Court dismisses Harry Dunn challenge

14 December 2020 by

R (on the application of Charlotte Charles and Tim Dunn) v Secretary of State for Foreign and Commonwealth Affairs & Chief Constable of Northamptonshire Police [2020] EWHC 3185 (Admin)

At a “rolled up” hearing on both permission and substantive merits, a challenge was considered by the High Court to the decision of the Foreign and Commonwealth Office’s (“FCO”) that Anne Sacoolas, the wife of a member of the US Government’s Technical and Administrative staff stationed at RAF Croughton, was entitled to diplomatic immunity from prosecution.

The challenge to this decision was dismissed on all grounds. However, permission to appeal to the Court of Appeal has been granted.


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The Weekly Round-up: An ‘Attack’ on Human Rights and Two Failed Judicial Reviews

14 December 2020 by

Photo: Andrew Parsons

In the news

This was a busy week. It saw the beginning of a nationwide vaccine roll-out and protracted negotiations in Brussels to stave off a no-deal Brexit (which remains a ‘high probability’ according to the Prime Minister). It also saw the Government announce the appointment of retired Court of Appeal judge Sir Peter Gross to lead the review of the application of the Human Rights Act 1998 in the UK Courts. This review will look at the relationship between UK courts and the European Court of Human Rights in Strasbourg; the impact of the Human Rights Act on the relationship between judiciary, executive, and Parliament; and the application of the Human Rights Act to actions taken outside the UK.

Moving to Brexit, the House of Lords voted on Monday to approve a Labour amendment to the Government’s Trade Bill. The amendment requires that Ministers undertake a human rights impact assessment for any trade deal, and must revoke an agreement in any case where potential genocide is found in a UK High Court ruling. The measure has been proposed in response to allegations that China is committing genocide against the Uighur Muslims in Xinjiang province.


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Might the Human Rights Act impose a duty to pass subordinate legislation?

11 December 2020 by

On 25 November 2020 David Hart wrote a post setting out the central issues in Henshaw J’s lengthy judgment, R (o.t.a. of Aviva & Swiss Re) v. Secretary of State for Work and Pensions [2020] EWHC 3118 (Admin). If you want to remind yourself of the details of this interesting case read David’s post –Successful insurers’ A1P1 claim concerning benefits reimbursement in asbestos claims.

One question David didn’t go into occupies only two pages of the 183 paragraphs but is worth a post on its own. The claimant insurers argued that the defendant Secretary of State had unlawfully omitted to make regulations under the Social Security (Recovery of Benefits) Act 1997 that would have limited the amount of the liability imposed on the insurer by that Act (Section 22(4)). This is because of subsequent developments in the law of tort which made unlimited liability unfair. They maintained that as Parliament had itself been prepared to delegate authority in this area to the Executive, the failure of the defendant to make secondary legislation led directly to their loss. Section 30(1) of the 1997 Act provides that any power under it to make regulations or an order is exercisable by statutory instrument.


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Deportation and family rights

10 December 2020 by

The European Court of Human Rights has found that the deportation of a Nigerian man from the United Kingdom violated his right to respect for private and family life guaranteed by article 8 of the European Convention on Human Rights. The applicant in Unuane v United Kingdom successfully argued that his removal from the UK was a disproportionate interference with family life because it separated him from his children. Though finding for the applicant, the Court rejected his attack on the compatibility of the Immigration Rules – an issue that as recently as 2016 the Supreme Court had authoritatively settled. The decision is of interest for the Court’s approach to the necessary balancing exercise to be carried out in the sensitive area of human rights challenges to the deportation of foreign criminals.

The facts

The applicant, Mr Unuane, is a Nigerian national who came to the UK in 1998. He has three children with his Nigerian partner, all of whom are (now) British citizens and one who has a rare congenital heart defect. In 2005 the applicant was convicted of obtaining a money transfer by deception and in November 2009 he and and his partner were convicted of offences relating to the falsification of thirty applications for leave to remain in the UK. He was sentenced to a period of five years and six months’ imprisonment, while his partner was sentenced to eighteen months’ imprisonment. Since the applicant was sentenced to more than twelve months, he was deemed to be a ‘foreign criminal’ and as such the Secretary of State was required to make a deportation order against him (s32(5) UK Borders Act 2007). An order was made against the applicant’s partner for the same reason and against two of his children as dependent family members (only one was a British citizen at the time).


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Best of Law Pod UK 2020

8 December 2020 by

Covid, clinical negligence, quarantine, lockdown, inquests, nerve agents, algorithms, child abuse, coercive and controlling behaviour and racism. What’s there not to like in our smorgasbord of favourites from the past eleven months?

Worry not: there are laughs to be had. A bee bothers a bureaucrat with solemn consequences for subordinate legislation in a motion of regret debate.

Happy listening to Episode 132!


Law Pod UK is available on 
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The Round-Up: Some hope remains for Harry Dunn’s family

8 December 2020 by

Credit: Getty Images/Tetra Images

In the news:

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.


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Challenge upheld to Covid-19 changes to care regime for children

7 December 2020 by

R (Article 39) v Secretary of State for Education [2020] EWCA Civ 1577

The issue before the Court of Appeal was whether the Secretary of State for Education had acted unlawfully in failing to consult certain bodies representing children in care, including the Children’s Commissioner for England, before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (“the Amendment Regulations”) following the outbreak of the Coronavirus pandemic.

On 24 November 2020, the Court of Appeal allowed the appellant’s appeal, granting a declaration that the Secretary of State for Education had acted unlawfully by failing to consult those bodies before introducing the amendments.


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Magna Carta and Freemen on the Land

4 December 2020 by

AVI and MHVB and Jacqueline Robinson, a.k.a. Jacquie Phoenix (Third Party and Unauthorised Alleged Representative) 2020 ABQB 489

I was put on to this decision from the Court of Queen’s Bench of Alberta by a response to a post from the Secret Barrister on Twitter (@barristerSecret) . This concerns the Magna Carta tsunami that has wreaked a certain amount of havoc on social media in response to the government’s Covid restrictions.

We have been taking an interest in the Freemen on the Land phenomenon from the early days of the UKHRB. See Adam Wagner’s 2011 “Freemen of the Dangerous Nonsense” and his comment on the 2012 Alberta case Meads v. Meads, 2012 ABQB 571 (CanLII) 


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Puberty Blocking — can a child consent?

4 December 2020 by

A case about medical treatment for children experiencing gender dysphoria is bound to evoke strong feelings. So, in early October, when the parties in R (on the application of Quincy Bell and A v Tavistock and Portman NHS Trust and others arrived for the hearing at the Royal Courts of Justice, they found a buzz of press photographers and a throng of campaigners with placards.

Now the Divisional Court has delivered its judgment in this controversial and difficult case. On 1 December 2020, it substantially upheld the Claimants’ challenge to the practice of prescribing puberty-blocking drugs to children, some as young as 10, with gender dysphoria.

The first Claimant, Quincy Bell, was born female. At about 15 she was prescribed puberty blocking drugs (PBs) to halt the development of female sexual characteristics. Subsequently she transitioned to a male using “cross-sex hormones” and then underwent a double mastectomy. She told the court her doubts began before the surgery and she now wished to identify as a woman, reverting to the sex on her original birth certificate. “I made a brash decision as a teenager” she said, “… trying to find confidence and happiness except now the rest of my life will be negatively affected…transition was a very temporary, superficial fix for a very complex identity issue.”

The second Claimant was the mother of 15 year old with autism experiencing gender dysphoria whom she feared would be prescribed puberty-blockers.

The Claimants contended that prescribing these drugs to under 18s was unlawful because they lacked competence to give valid consent to the treatment, and were given misleading information.


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Dolan’s latest lockdown defeat

3 December 2020 by

Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605

I wrote about the launch of these proceedings earlier this year (Legal Challenge to Lockdown) where Mr Dolan was refused permission to appeal the refusal of his application for judicial review. (see Dominic Ruck Keene’s post on that decision). Since then UKHRB has been covering this and similar challenges closely: see here and here, as well as alerting our readers to cases in other countries: New Zealand, and South Africa. My recent post on “vaccine hesitancy” and proposals for mandatory Covid-19 vaccines has attracted a considerable number of readers and comments.

Getting back to the case in hand, this latest defeat for Dolan’s team is slightly more complicated. The Court of Appeal’s ruling can be summarised briefly, but anyone wanting to be reminded of the details will do well to go back to Emmet Coldrick’s enlightening series on the earlier stages of this case and the arguments raised by the appellants in Part 1 and Part 2.


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New criminal record disclosure rules take effect

1 December 2020 by

On the 28th November 2020, The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 (“the Order”) came into force, implementing important changes to the criminal records disclosure rules in England and Wales.

The criminal records disclosure regime provides information through Disclosure and Barring Service (DBS) certificates to employers about an individual’s criminal record. That information is then used by employers when considering the suitability of applicants for eligible roles or work.

The Order removes the requirement for automatic disclosure of youth cautions, reprimands and warnings and removes the ‘multiple conviction’ rule, which required the automatic disclosure of all convictions where a person has more than one conviction, regardless of the nature of their offence or sentence.


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Does the lockdown breach the right to freedom of religion?

30 November 2020 by

The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.

Article 9 ECHR provides as follows:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

This protects the right to public and communal worship where that is part of the belief held by an individual or group, and accordingly Article 9 is clearly engaged.

Nevertheless, when considering the legality of the lockdown it is relevant that the neither latest iteration of the Coronavirus Regulations, nor the previous version that imposed the earlier lockdown, in any way restrict the Article 9(1) right to hold a belief, or choices made regarding personal behaviour outside the context of places of worship.

Further, the European Court of Human Rights (ECtHR) held in Pavlides v Turkey [2013] (Application 9130/09) at [29] that Article 9, taken alone or in conjunction with Article 11, does

not bestow a right at large for applicants to gather to manifest their religious beliefs wherever they wish.

The issue is therefore whether any interference with Article 9 rights was or is both necessary to meet the pressing social need of protecting the health of infected and potentially infected people (the specified exemption from Article 9) and also proportionate.


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Latest Law Pod UK Episode: Court of Protection Deputyship Orders

30 November 2020 by

In the Matters of ACC, JDJ and HPP  [2020] EWCOP 9

In her judgment of 27th February 2020 Hilder J laid down certain rules regarding what a property and affairs deputy can and cannot do in relation to seeking legal advice and taking steps in litigation. In these joined cases the deputies applied to the COP seeking orders for authorised expenditure of the protected persons’ estate for their costs in obtaining legal advice and conducting proceedings on P’s behalf.

The Senior Judge’s conclusions are set out in her summary at the end of the judgment. In Episode 131 of Law Pod UK Amelia Walker of 1 Crown Office Row discusses some of the salient issues in this comprehensive “one stop shop” ruling with Rosalind English.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 
or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

The Weekly Round-up: More restrictions and court backlogs

30 November 2020 by

In the news:

On Monday 23rd November, a self-isolating Boris Johnson announced a new system of restrictions to replace the UK’s second month-long lockdown, due to come into effect on Wednesday 2nd December. The new set of rules represents a stricter and no less confusing version of the old three-tiered system. 

Non-essential shops, gyms, and hairdressers will be allowed to reopen across the country. People are still encouraged to minimise travel and to work from home where possible. The following additional tiered restrictions will apply:

  • Tier 1 (Medium Risk):
    • The ‘Rule of Six’ will apply for both indoor and outdoor gatherings
    • Pubs and restaurants must shut at 11pm
    • Limited numbers of spectators may be permitted at sports and music events
  • Tier 2 (High Risk):
    • People from different households may not meet indoors
    • The ‘Rule of Six’ will apply for outdoor gatherings
    • Pubs and restaurants must shut at 11pm
    • Alcohol can be served only alongside a substantial meal
  • Tier 3 (Very High Risk):
    • People from different households may not mix indoors or outdoors in hospitality venues or private gardens
    • People from different households may only mix in public spaces like parks, where the ‘Rule of Six’ will apply
    • Pubs and restaurants must close except for takeaway and delivery services
    • Travelling into and out of the area is discouraged

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Intersectionality and equality: a view from the Constitutional Court of South Africa

26 November 2020 by

Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)

The house owner did not hear when Ms Mahlangu drowned in the family swimming pool. She was a domestic worker who had given 22 years of her life to tending to that family’s needs. Like most domestic workers in South Africa, she was a Black woman. Her daughter – Sylvia Mahlangu – sought to claim compensation from a statutory fund set up for employees who suffer injuries at work. Her claim failed because the legislation excluded domestic workers, like her mother, from the definition of ‘employee’ (see here, (xviii)(d)(v) excluding “a domestic employee employed as such in a private household” from compensation). 

The Constitutional Court of South Africa unanimously held that the exclusion of domestic workers from the statutory definition of employee breached the right to equality  (see here), and, by majority, the rights to dignity and to social security.  What I wish to focus on in this post is the diverging approaches to equality between the ‘dissenting’ judgment of Jafta J, on the one hand, and the ‘majority’ judgments of Victor AJ and Mhlantla J, on the other.  In particular, I wish to focus on the way Victor AJ and Mhlantla J relied on the concept of ‘intersectionality’ to understand what was truly constitutionally offensive about excluding domestic workers from the statutory definition of employee.  What follows is a necessarily high-level overview (at the risk, I accept, of being somewhat blunt). I hope the reader will understand that it is due to the constraints of space in a blog-post; I can only direct the interested reader to the judgments themselves. 


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