The Weekly Round-up: Rwanda hearing, planning law reforms, mercy killing reforms for prosecution decisions

9 October 2023 by Hal McNulty

In the news

The government’s Rwanda deportation scheme begins its battle in the Supreme Court today. Arguing the case for the appellants are In June, the Court of Appeal ruled the policy unlawful because of ‘deficiencies’ in Rwanda’s asylum-processing system. That court found that sending asylum-seekers to Rwanda entailed a ‘real risk’ of applicants being returned to their home countries, meaning the UK would break its commitment to not putting people at risk of torture under the European Convention on Human Rights.

Angus McCullough KC of 1 Crown Office Row is representing the United Nations High Commissioner for Refugees in this appeal. On the respondent (government) side, both of 1 Crown Office Row, are Neil Sheldon KC and Natasha Barnes (instructed by the Government Legal Department).

If the Supreme Court overturns this judgment, the Home Office will be able to schedule flights to Rwanda with just 12 days’ notice, unless the European Court intervenes again. The Illegal Migration Act, however, gives the Home Secretary a new power to ignore an interim order from the European Court.

At the Labour party conference, shadow ministers have announced that a Labour government would bring in significant reforms to the planning system. Keir Starmer has pledged to build 1.5m homes in the first five years of his government, introducing reforms such as increased powers of local authorities to hold property firms to account. Rachel Reeves has promised to speed up the planning process for infrastructure building.

The CPS has provided prosecutors with new guidance for ‘mercy killings.’ The term has not been defined by statute or common law and is not currently a defence to murder, but the guidance sets out the factors to consider when determining whether bringing a charge would be in public interest. These include whether the victim was under 18 years old, whether the suspect was motivated wholly by compassion, and whether the victim had clearly communicated their wish to die. The update is unlikely to radically alter the prosecution’s approach to such cases, but it articulates more clearly the reasons for and against bringing a charge where the public interest is in question.

The Weekly Round-up: Gaming the asylum system, contempt warnings, and a European climate change case

4 October 2023 by Grace Storrie

In the news

The Home Secretary, Suella Braverman, has been in the news for claiming that asylum seekers “purport” to be gay to “game the system” and receive preferential treatment in asylum applications. In a speech in Washington DC on Tuesday, the Home Secretary said that discrimination on the basis of sexuality or gender is not sufficient to qualify for international refugee protection. Braverman’s comments have been heavily criticised, and approximately twelve Conservative MPs complained to the Chief Whip this week, saying the Home Secretary’s remarks were offensive, divisive, and inaccurate. According to the BBC, sexual orientation only formed the basis of 1.5% of asylum claims made in the UK last year. Equally, many continue to face persecution as a result of their sexuality; consensual same-sex acts are illegal in a number of countries and, in some cases, are punishable by death. 

Meanwhile, the Attorney General issued a notice to the media this week, warning editors not to put themselves at risk of being in contempt of court by ‘publishing any material’ which might ‘prejudice any potential criminal investigation’ into the allegations against Russel Brand. Editors, publishers, and social media users were advised to comply with obligations under the Contempt of Court Act 1981. Commentators have criticised the Attorney General’s warning for possibly misapplying the law on contempt; publishers can be found unintentionally to be in contempt of court, but only where there are active criminal proceedings (which there are not in Brand’s case). Alternatively, the Attorney General might have been warning against falling foul of the old common law rules on contempt, where no active case is required. Regardless, many have questioned whether reporting by the media – who in this instance were responsible for breaking the allegations against Brand and prompting a criminal investigation – would make any future trial unfair. 

Targets for reduction in sewage outflow not unlawful, says High Court

28 September 2023 by Rosalind English

The King (on the application of Wildfish Conservation v Secretary of State for the Environment, Food and Rural Affairs and the Environment Agency (Defendant) and the Water Services Regulation Authority (Interested Parties) [2023] EWHC 2285 (Admin)

In 2022, there were over three hundred thousand incidents of overflow into coastal waters, freshwater rivers and estuaries from sewerage works in the UK, following heavy rainfall. The most common cause of the overflows studied was rainwater entering sewers with insufficient capacity.

These proceedings were brought in regard to the publication of a Plan regarding setting out specific targets for water companies, regulators and the Government “to work towards the long-term ambition of eliminating harm from storm overflows”. These targets are compliance with existing statutory obligations, including conditions in permits issued by the Environment Agency.

The Plan sets three targets: that water and sewerage companies will by 2050 only be allowed to discharge from a storm overflow where there would be no local adverse ecological effect; the second target is to protect public health in designated bathing waters: water and sewerage companies must by 2035 significantly reduce harmful pathogens from overflows either by carrying out disinfection or by reducing the frequency of discharges; the third, a backstop target for 2050, which operates in addition to the first two targets: by 2050 storm overflows will not be permitted to discharge above an average of 10 heavy rainfall events a year.

The Marine Conservation Society, an oyster growing company and an individual representing the public interest also challenged the legality of the Plan. The Environment Agency and Ofwat were interested parties.

Factual Background

In 2020 the sewerage network was under pressure from a growing population, increased run-off from urbanisation and heavy rainfall. It was acknowledged that the cause of overflow was the lack of capacity in the current sewer network and that had to be tackled. The government and Ofwat recognised that that water infrastructure had not kept pace with developmental growth over decades.

In the face of this, officials and ministers started formulating policy targets which would require improvements going beyond those which could satisfy a cost-benefit test(the so-called and therefore be required under regs.4 and 5 of the 1994 Regulations (BTKNEEC: see below.)

The new statutory plan that the Secretary of State had to produce was seen as a means to set specific, time-bound objectives which would drive widespread change on storm overflows across the country. But officials advised that the target should seek to reduce discharges significantly rather than eliminate them altogether, because of the costs involved and the small level of additional benefit generated.

Best of Law Pod 2023 so far

19 September 2023 by Rosalind English

In Episode 189 presenters Rosalind English and Lucy McCann reprise some of the leading episodes of Law Pod UK this year, ranging from the potential impact of AI on the legal professions, to the problem of Deprivation of Liberty Orders for children in the UK, given the severe lack of regulated accommodation available for the family courts to identify.

For a reminder and a refresher of the wide spectrum of subjects we cover on this series, dive in, learn and enjoy.

The Weekly Round-up: Terrorist convict escapes Wandsworth, lawsuit against Google and German Court questions conditions in UK prisons

11 September 2023 by Hal McNulty

In the news

Questions have been raised over the state of the British prisons system after the escape of Daniel Khalife. The 21 year-old former soldier who had been convicted for terrorist offences escaped from Wandsworth prison by hiding under a food delivery lorry, reportedly, but was later recaptured by police on a Chiswick towpath. Justice Secretary Alex Chalk has signalled that investigations are being made into the prison’s conditions. Inquiries may be made into the reason for Khalife being held in Wandsworth, a category B-security prison, rather than the high-security prison Belmarsh, where serious terrorist suspects are ordinarily kept. The incident has been used by some to demonstrate that the system has now reached breaking point, with overcrowding and understaffing enabling such incidents.

Google is facing a multi-billion pound lawsuit brought on behalf of UK consumers on claims that its search-engine stifled competition, causing prices to rise. The claim is that Google restricted competition by raising the prices for advertisers, making use of its market dominance. These costs are ultimately passed onto the consumers and are estimated at £7.3bn, at least £100 per member of the 65-million-person class of UK users over the age of 16. Google has commented that it will “vigorously dispute” this “speculative and opportunistic” suit.

In other news

The Weekly Round-up: Sentencing Hearings, the Letby Inquiry, and Equal Pay Legislation

8 September 2023 by Grace Storrie

In the news 

This week, the Ministry of Justice has proposed new laws which would allow judges to force defendants to attend sentencing hearings. Judges can already issue an order requiring a defendant to attend court, and failing to comply can result in a prosecution under the Contempt of Court Act. The Ministry of Justice says, however, that these powers are rarely used by judges. The proposed reforms will allow custody officers to use “reasonable force” to make defendants appear in court. The reforms would also allow judges to extend a defendant’s sentence by two years if they refuse to comply. The new measures were prompted by a number of defendants convicted of murder refusing to attend sentencing hearings, including Lucy Letby who was given a life sentence for the murder of 7 babies and attempted murder of 6 others. While the victims’ families have welcomed the reforms, others have expressed concern that the policy will overburden the court system and place prison staff in unnecessarily dangerous situations. 

Law Pod UK Ep.188: Vulnerable witnesses: Communication in the Family Courts

30 August 2023 by Rosalind English

Listen to Family law expert Richard Ager talk to Melissa Patidar about her intermediary service company, Comunicourt, which provides communication support between lawyers and witnesses in remote and face to face hearings in family court proceedings. They discuss parties with vulnerabilities, qualifications and role of an intermediary, and how lawyers should aim to work with them.

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.

Seventeen years: what does Andrew Malkinson’s wrongful conviction say about the appeals process?

29 August 2023 by Hal McNulty

Missing evidence

Earlier this month, the Court of Appeal overturned Andrew Malkinson’s conviction for rape and related assault offences, for which he had spent 17 years in prison. An appeal in 2006 upheld the verdict and applications to the Criminal Case Review Commission (CCRC) in 2012 and 2020 were denied. Finally, a third application last year convinced the CCRC to order fresh DNA analysis. It was this evidence as well as treatment of some previously undisclosed information to do with Malkinson’s witness identification which secured his release.

The Good Friday Agreement and the European Convention on Human Rights

29 August 2023 by anuragdeb

Introduction

On 11 August, a piece from Professor Richard Ekins KC (Hon) set out a case for the UK denouncing the European Convention on Human Rights (ECHR) and leaving the treaty system altogether. One of the main arguments in favour of this is that it would ‘restore Parliament’s freedom, on behalf of the British people, to decide what our laws should be’. This marks one of the more recent such calls, amid a growing chorus of Ministers in the UK Government and Conservative Party MPs to leave the ECHR. Also, it should be noted that we have been here before. The constitutional aspects of such a move aside, there are particular reasons why it would impact Northern Ireland. While Northern Ireland does not feature in Professor Ekins’ 11 August piece, he has previously written about the interaction between the ECHR and the Good Friday Agreement 1998 (GFA), which underpins the modern devolution settlement in Northern Ireland and which brought an end to a brutal and deadly conflict. This interaction is the subject of this post.

The Weekly Round-Up: Bibby Stockholm, Children’s Rights, and Illegal Evictions

28 August 2023 by Orry Moore

In the news

The Fire Brigades Union has sent a pre-action protocol letter to the Home Secretary threatening judicial review of her alleged failure to address “serious fire and operational safety concerns” aboard the Bibby Stockholm. The FBU claims that the Home Office has failed to arrange fire drills for asylum seekers or adequate risk assessments of the barge, despite more than doubling the number of planned occupants by using single rooms for double occupancy and creating rooms for four or six persons to sleep in. This, they say, creates “an apparently entirely new, and highly dangerous accommodation arrangement” which is “inherently unsafe”. The planned judicial review follows the Home Office’s refusal to meet officials to discuss fire safety concerns, which Robert Jenrick – the Immigration Minister –  justified on the basis that the barge meets industry standards and that appropriate bodies, such as the National Fire Chiefs Council, have been consulted.

Should there be a statutory public inquiry into the murders and attempted murders by Lucy Letby?

23 August 2023 by Peter Skelton KC

Why wasn’t Lucy Letby stopped sooner? This is the burning question that the families of her victims, and the public, are now asking. Steve Barclay, the Health Secretary, has decided that the best means of answering it is a ‘non-statutory public inquiry’. But what is such an inquiry, and will it be better than a full-blown statutory public inquiry?

Non-statutory inquiries can be set up by anyone, at any time, to investigate anything.  They proceed in private and have no legal powers to demand the disclosure of documents or to call witnesses to give evidence. But they have the twin merits of speed and informality. The former may be very valuable, particularly where urgent changes are needed. The latter can facilitate a greater degree of candour about errors that have been made, as witnesses feel less pressure than they do in the full glare of public scrutiny. But such inquiries are entirely reliant on organisations and individuals to assist them. This cannot be guaranteed, particularly where livelihoods, reputations, and even freedoms, are at stake. So they may fail where this doesn’t happen. 

Non-statutory inquiries also don’t always give victims, their families, and the public, the assurances they need that the Government understands the gravity of what has happened. An example of this is non-statutory inquiry into the horrific abuse perpetrated by David Fuller – who sexually assaulted many dead bodies that were supposedly safe in a hospital mortuary. Ordered by the then Health Secretary, Sajid Javid, on 8^th November 2021, its proceedings have been entirely behind closed doors and it has yet to report almost two years on.

Coronial powers and the rights of the unborn (Part 2)

14 August 2023 by Ruby Peacock

In this two-part article, Maya Sikand KC, Tom Stoate and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield. 

The first part explored whether coroners should have jurisdiction to investigate stillbirths. 

This second part seeks to answer the question: should foetuses ever be protected by a ‘derivative’ right to life?

For a brief introduction to Aisha Cleary’s case, please see Part 1.

Article 2 ECHR rights in utero

Article 2, encapsulating the right to life under the European Convention on Human Rights (‘ECHR’), does not provide temporal limitations on the right to life and does not define ‘everyone’ (‘toute personne’) whose life is protected by the Convention.^[1] The European Court on Human Rights (‘ECtHR’) has left it to the margin of appreciation of Convention states to decide when life begins for the purposes of Article 2. In England and Wales, ‘Coroners do not have jurisdiction to conduct an investigation concerning a foetus or a stillborn child, as where there has not been an independent life, there has not legally been a death’.^[2]

Weekly Round-up: Presidential assassination; sewage lawsuit; lefty lawyers

14 August 2023 by Hal McNulty

In the news

One of the candidates running in Ecuador’s upcoming presidential election has been assassinated. Fernando Villavicencio was shot dead at a campaign rally in Quito. His election platform addressed the issues of corruption and government links to organised crime. There is speculation that the powerful Los Lobos gang is behind the killing. This follows the news two weeks ago of the fatal shooting of Agustín Intriago, a popular city mayor. Formerly hailed as one of the safest countries in South America, Ecuador has been overrun in recent years by organised crime and international drug cartels, while democratic rights of protest have been rolled back by the political establishment.

British water companies are facing lawsuits valued at £800 million for failing to report pollution. Class actions claims are being brought against six water companies on behalf of the public. The claimants allege that the companies’ failure to report the discharge of raw sewage into the supply is a breach of competition law and should have lowered the consumer price. Carolyn Roberts, the environmental and water consultant bringing the claims at the competition tribunal, contends that customers have been overcharged as a result of the water companies abusing their power as privatised monopolies.

 A group of asylum seekers which refused to board the Bibby Stockholm barge was warned on Monday that government support would be withdrawn if they did not move onto the accommodation. The Justice Secretary, Alex Chalk, commented that the illegality of the proposal was “something that the courts would have to consider” but that it was “unlikely” to be illegal, also remarking that the asylum accommodation was “sparse and […] a bit austere but, frankly, that is not unreasonable.” The charity Care4Calais have criticised the scheme as likely to cause vulnerable people emotional distress. On Thursday, however, all migrants were removed from the vessel after it was discovered that Legionella bacteria had entered the water supply.

Coronial powers and the rights of the unborn (Part 1)

11 August 2023 by Ruby Peacock

In this two-part article, Maya Sikand KC, Tom Stoate, and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield. 

This first part seeks to answer the question: should coroners have jurisdiction to investigate stillbirths?

The second part will examine whether foetuses should enjoy Article 2 rights which do not conflict with the rights of the mother.

Rianna Cleary, who was 18 years old at the time, gave birth to Aisha Cleary alone in her cell in HMP Bronzefield, on the night of 26 September 2019, without medical or any other assistance. Ms Cleary’s two calls for help via the prison emergency intercom system in her cell were first ignored, then unanswered – despite there being a 24-hour nursing station on her wing in the prison. Terrified and in pain, without knowing what to do, Ms Cleary felt compelled to bite through her umbilical cord. Aisha’s birth was not discovered by prison staff until the next morning – after other prisoners raised their concerns – at which time Aisha was ‘not moving, had a tinge of blue on her lips, but was still warm’.^[1] Unsuccessful resuscitation attempts were made, with an adult oxygen mask in the absence of any paediatric or neo-natal mask. Less than an hour later, paramedics confirmed that Aisha had died.  The Senior Coroner for Surrey, Richard Travers, stated that Aisha ‘arrived into the world in the most harrowing of circumstances’.^[2]

Following a month-long inquest, involving ten interested persons (‘IPs’) and more than 50 witnesses, including three expert witnesses, Mr Travers concluded that numerous causative failings contributed to Aisha’s death.

Holden v Ministry of Defence and the Police Service of Northern Ireland: accountability and the Northern Ireland conflict 

9 August 2023 by anuragdeb

In the early hours of 24 March 1922, a group of men, of whom most were in police uniform, broke into the North Belfast home of prominent Catholic businessman Owen McMahon and shot him dead, along with four of his sons and a male employee. Between 1920 and 1922, hundreds of people were killed, and thousands forced out of their homes, particularly in Belfast and the surrounding townlands. These grizzly events marked the birth of Northern Ireland.