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The High Court has granted an injunction preventing M25 protests in response to Just Stop Oil activists gluing themselves to motorways in the past weeks. The injunction means that anyone fixing themselves to the road, or anyone assisting someone else in doing so, can be held in contempt of court and thus face imprisonment, an unlimited fine, and the seizure of assets. The decision follows a previous court order obtained against Insulate Britain who partook in similar protests earlier in the year. The existing injunctions now cover the M25, the M25 feeder roads, and major roads in Kent and around the Port of Dover until May 2023.
The proposed bill to overhaul EU law, the Retained EU Law (Revocation and Reform) Bill, could have devastating impacts on legal certainty in the UK, the Law Society have warned. The measures would allow ministers to overhaul laws without appropriate parliamentary scrutiny or public oversight, raising concerns over parliamentary sovereignty, legal certainty, and the rule of law, according to Society president Lubna Shuja. A clause in the bill would mean that many retained EU laws will expire at the end of 2023, with them going many basic protections. The Society has called for this ‘arbitrary and unrealistic’ 2023 deadline to be removed in order to allow a more measured review of the laws and what reform is necessary.
In other news
A coroner has determined in a pre-inquest hearing that there was no evidence that Archie Battersbee partook in the TikTok blackout challenge. While Archie did access TikTok on the day of his tragic injuries, there was nothing to suggest his accident was connected to the trend in question. The finding was based on photographs and videos downloaded from his phone.
The UN Human Rights Council have reminded that the UK’s treatment of asylum seekers must comply with international law in their review of the human rights situation in the UK. The statement came alongside a call on the Government to give some certainty to asylum seekers by speeding up approvals instead of housing people in motels, stating the temporary accommodation they are kept in is ‘grim’. The examination was against the backdrop of plans to send migrants to Rwanda.
The Government have been accused of ‘rolling back’ on tackling modern slavery by the charity Anti-Slavery International. It is claimed that the UK has attempted to reclassify modern slavery as an immigration issue and that a rhetoric of ‘abusing the system’ diverts attention from the important issues. The charity says that the Rwanda scheme, for instance, fails to provide safeguards to prevent victims of modern slavery being targeted for relocation.
In the courts
In Commissioner of the Police of the Metropolis v A Police Conduct Panel [2022] EWHC 2857 (Admin), the High Court ordered that a new panel redetermine whether an officer’s behaviour amounted to gross misconduct in relation to the unauthorised use of firearms. The officer in question falsely stamped his personal firearms authorisation, meaning whenever a weapon was withdrawn by him, he used a false document authorising him to carry it. The Commissioner claimed judicial review of the panel assessing his conduct (who did not dismiss him) on 2 grounds: (i) the process by which his sanction was reached was unlawful; and (ii) the sanction awarded was irrational. Ground 1 was accepted on the basis that the Panel erred in law by considering testimonials when assessing the misconduct. Ground 2 was accepted on the basis that the only reasonable sanction was dismissal, whereas the panel only issued a written warning.
In Modi v Government of India [2022] EWHC 2829 (Admin), the High Court dismissed an appeal against a ruling ordering the Claimant to be extradited to India, who seek him for criminal proceedings. The appeal submitted that the extradition was oppressive within the meaning of s91 of the Extradition Act 2003 by virtue of his physical or mental condition. The court determined that while the risk of suicide is high, there are suitable medical provisions and an appropriate plan in place to mitigate this risk. The risk therefore did not cross the high threshold required to satisfy that the claimant’s condition is such that it would be oppressive to extradite him.
In AB v Chief Constable of British Transport Police [2022] EWHC 2749 (KB), the High Court dismissed an appeal against a judge’s declaration that the retention of records in relation to an incident involving the claimant was unlawful. The claimant has Asperger’s and experiences high levels of anxiety. Two women complained to the police that he had touched them inappropriately, but he was not charged with any offence. The police retain information about the complaints, which the claimant submits is unlawful on 2 grounds: (i) it is inaccurate, and the retention is therefore in breach of data protection; and (ii) it is a disproportionate interference with his Article 8 Convention rights. The appeal was dismissed for the fundamental reason that the records were intended to reflect the information provided to the police, rather than detailing the underlying facts of what happened.
Elsewhere on the UKHRB
Rosalind English discusses the HS2 protest injunction here.
A report has found that the newly introduced practice of GPS tagging migrants has left people feeling suicidal and stigmatised. Since August 2021, those on immigration bail facing deportation have been monitored by the State, but in January of this year the measures were increased to GPS tracking their every move. The report raises the following concerns: (i) it causes serious damage to mental and physical health; (ii) it is a form of surveillance that goes beyond what is necessary; and (iii) the tags must be charged for up to 4 hours per day and cannot be removed to do this. In the round, the report characterised the practice as ‘psychological torture’ and recommended that it be stopped.
Thousands of students have decided to bring legal claims against universities over their education during the Covid-19 pandemic. The claims complain that the tuition fees for education remained the same despite everything moving online, the result of which being that resources were vastly reduced. Some students paid £40,000 for the year despite lessons frequently being cancelled and timetables slashed. Part of the issue, according to one student at the University of Nottingham, was that students were not told when the period of online teaching would end, and so were forced to pay rent for no reason. No claim has been brought at present, but the calls have rallied nearly 20,000 students in support.
This case involved the application, and grant, of an interim injunction in the “unknown” as well as “known” protester context by Knowles J in the Birmingham District Registry.
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The first claimant was the company responsible for construction HS2, the high speed railway line between London and the North of England via the Midlands, part of which is already under construction. The second claimant was the company responsible for the successful delivery of the HS2 scheme.
A legislative scheme gave the company wide powers to acquire and take temporary possession of land for the purposes of construction and maintenance. This land covers the whole of the proposed HS2 route, and other land providing access.
Both claimants applied for an interim injunction to restrain trespass and nuisance by a large number of defendants who were opposed to the construction of HS2. Some of these defendants were named, most unnamed.
The storm raging around small boats arriving on the south coast has been brewing for some time. In early summer the focus was a policy to send arrivals to Rwanda. Intervention by the European Court of Human Rights effectively suspended flights while a domestic ruling on the policy’s legality is awaited. Meanwhile, in Dover a migrant processing centre has been firebombed, another is dangerously overcrowded, and the new Home Secretary raises tensions by speaking of an “invasion”.
Amidst this swirl is an eye-catching Divisional Court Decision about a secret and unlawful Home Office policy to seize and download data from the mobile phones of all those arriving in small boats. The substantive Judgment in R (HM, MA and KH) v Secretary of State for the Home Department [2022] EWHC 695 (Admin) was delivered on 25 March 2022, followed by an Order distilling the Court’s conclusions on 18 October 2022.
The Law Commission has recently brought out its consultation paper on these new forms of assets, and how they might be aligned with the ancient law on property. In Episode 171 of Law Pod UK Rosalind English talks to Robert Kellar KC about the challenges this novel arrangement of ownership presents to English property law. What do we mean, exactly, when we talk about the idea of digital assets?
We’re all very used to the idea of electronic money: for decades, money has been represented electronically on in our bank accounts. But the the Law Commission’s paper deals with quite different issues, when it comes to digital assets.
The consultation paper is at pains to stress that property law must encompass these new forms of ownership. As Robert points out in this episode, property rights are useful because they can be enforced against the whole world, whereas other legal rights can be enforced only against someone who has assumed a relevant duty in contract or tort.
Furthermore, the concept of property is widely used in statutes and case law, assuming a central role in proceedings concerning bankruptcy or insolvency, tortious or criminal interference with property, and death and succession.
The Law Commission’s conclusion thus far is that digital assets should be treated as a new category of property.
Listen to the episode and follow @LawPod_UK on Twitter if you have any feedback, ideas and comments for the team. Alternatively, read more about this topic on our blog here.
Dominic Raab has returned to the role of Secretary of State for Justice and Lord Chancellor. Brandon Lewis stepped down from the role after 50 days in office; he recently engraved his name on the foundation stone at London’s Justice Quarter, where construction of a ‘super court’ began last week.
On 25 October, Safeguarding Minister Mims Davis announced new provisions, collectively known as ‘Kay’s Law’, to better protect victims of crimes such as domestic abuse and sexual assault. The reforms, coming into force this week, include imposing a duty upon the police force to take into account the views of victims before releasing someone on bail, and encouraging the use of pre-charge bail when necessary and proportionate. These reforms coincide with further measures to support victims, including the ‘ENOUGH’ campaign. The campaign provides information on support services, safe ways to intervene if someone witnesses an incident of violence against women and girls, and offers guidance for individuals worried about their own behaviour.
The ruling has been released in the deportation case of two members of the Rochdale grooming gang. Adil Khan, 51, and Qari Abdul Rauf, 52, lost their appeal against deportation after a seven-year legal battle following their convictions of child sex offences in May 2012. Although the appeal was heard at an immigration tribunal in June, with a decision made in August, judges have only just released their legal ruling. The challenge against deportation on human rights grounds failed; in both individuals’ cases there was a “very strong public interest” in them being removed from the UK.
Lawyers representing TFL have requested permission from the High Court to take legal action against a further 121 named people following the intensification of Just Stop Oil protests. Earlier this month Mrs Justice Yip granted an injunction against 62 named “defendants” and against “persons unknown”, also making an order that the Metropolitan Police should “disclose” to TFL the names and address of individuals arrested as a result of the protests.
In other news
A report, from the Minderoo Centre for Technology and Democracy, at the University of Cambridge, has stated that live facial recognition technology (LFR) should be banned from use in streets, airports and any public spaces. The study examined three deployments of LFR, one by the Metropolitan police and two by South Wales police; it found that all three failed “to meet ethical and legal standards”.
The Law Society has found that, at the current rate of progress, it will take more than 125 years before there is proper representation within the England and Wales judiciary. Black judges make up just 1.09% of the judiciary, compared with 1.02% in 2014, and it would take until 2149 for their representation to match current estimates for the general population (3.5%). For female representation to be achieved, it is expected to be at least another decade, and for people of Asian ethnicity, that stage in anticipated to be reached by 2033.
For the first time, the information commissioner has issued a blanket warning on the ineffectiveness of ‘emotional analysis’ technologies. The attempted development of ’emotional AI’ is one of four issues that the ICO has identified in a study of the future of biometric technologies. The “pseudoscientific” nature of the field makes it untrustworthy, especially in instances of gathering information related to important decision making.
In the courts
On 21 October the Court of Appeal handed down judgement in Rowe v London Borough of Haringey[2022] EWCA Civ 1370. The case concerned HHJ Roberts’ order dismissing the Appellant’s appeal against the London Borough of Haringey’s review decision dated 23 June 2021. The decision stated that the Appellant was not statutorily overcrowded under the requirements of Part X Housing Act 1985 (HA 85) and it was reasonable for her to remain in her accommodation. The dispute arose as to whether Part X HA 85 applied to the house as a whole, as the Appellant contended, or the Appellant’s room, as the Respondent contended. In post-hearing submissions, the Respondent contended whether Part X HA 85 applied at all, arguing instead that the relevant measure was that in Part 2 Housing Act 2004. The Court declined to decide on this issue, instead proceeding on the original submissions that Part X HA 85 applied. The Court held the property was not a ‘separate dwelling’ for the purposes of s.325 and s.326 HA 1985 and that no breach of overcrowding had occurred. Ground 2 of the appeal, assessing reasonableness of occupation was predicated on Ground 1, which had been dismissed. The Court held that the Respondent’s withdrawal of its original decision, via a letter dated 12 May 2022, due to their mistake in not assessing the property’s status as an unlicensed HMO did not render the claim as academic.
On 26 October, the High Court handed down judgement in Three Counties Agricultural Society v Persons Unknown & Ors[2022] EWHC 2708 (KB). The case involved an application for a precautionary injunction against ‘Persons Unknown’ by the Claimant, in an effort to curb protest activity at the Three Counties Defence and Security Exposition. The Court stated that the starting point for the grant of an injunction was s 37(1) of the Senior Courts Act 1981. In this instance European Convention rights were engaged, therefore the correct test to apply was the more stringent one laid down in Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100. The Court held that the injunction to prevent trespass upon the Claimant’s land was appropriate and necessary. In respect of the part of the Order relating to activity on the highway, the Court stated it must strike a balance between the rights of the protestors and the rights of the Claimant to access and egress its land. The Court held that granting the injunction would not unlawfully interfere with Article 10 and 11 rights of the protestors, and that any interference presented by the injunction was proportionate.
Rishi Sunak has formally been appointed the new UK prime minister, following Lizz Truss’ resignation on Thursday 20 October 2022. He is the youngest prime minister for more than 200 years and the first British-Asian prime minister.
A report by Baroness Casey has revealed that claims against Met Police officers of sexual misconduct, misogyny, racism and homophobia have been badly mishandled. According to the report, 1,809 officers – or 20% of all those facing allegations – had more than one complaint raised against them: less than 1% of officers facing multiple allegations had been dismissed from the force. Met Police Commissioner Sir Mark Rowley says he is ‘appalled’ at the findings and the situation ‘cannot continue’.
The University of Manchester has released a report which finds the judiciary in England and Wales to be ‘institutionally racist’. In a survey of almost 400 lawyers and judges, 95% said that racial bias played some role in outcomes in court and 29% said it played a ‘fundamental role’. The study also showed that judicial discrimination to be directed particularly towards black court users – from lawyers to witnesses to defendants. Since 2020, however, there has been only one published Judicial Conduct Investigations Office decision in which racism was found against a judge.
In this guest post, Dr Ilaria Bertini, Research Fellow at Bios Centre, examines the recent decision of a Chamber of the Third Section of the European Court of Human Rights in Mortier v. Belgium, which examined Belgian law relating to euthanasia.
Introduction
The European Court of Human Rights recently delivered a landmark judgment, Mortier v. Belgium (78017/17), on a case of euthanasia.
The case concerns an adult Belgian citizen who underwent a euthanasia procedure at a time when she was suffering from severe depression, without her son or daughter being properly informed. Hence her son, Tom Mortier, claimed that the government failed to protect both her right to life (art. 2 ECHR) and her right to respect for private and family life (art. 8 ECHR).
According to the Belgian Act on Euthanasia (28th May 2002) it is legal for a physician to perform euthanasia if the following three criteria are met: the patient is legally competent and conscious at the time of the request, the request is made autonomously without external pressure, and the patient is suffering from a “medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident.” An independent second opinion might be needed to assess the patient’s willingness to die. Once the euthanasia is approved, there is a cooling off period of one month before the act takes place. Afterwards a Commission of 16 persons seeks to check all the reports to make sure that the procedure has complied with the law.
On 22 September 2022, the UN Human Rights Committee found that the Australian Government had violated the human rights of various Torres Strait islanders through climate change inaction.
The rights in issue arose under the International Covenant of Civil and Political Rights of 1966, and in particular the right to life (Article 6), the right to be free from arbitrary interference with privacy, family and home (Article 17), the rights of the child (Article 24), and the right of indigenous minorities to enjoy their culture – all of which rights should be respected and ensured to all individuals (Article 2).
The Home Office has reclassified modern slavery as an “illegal immigration and asylum issue”. While it used to appear on the official list of ministerial responsibilities for the safeguarding minister, it is now listed at the bottom of the “illegal immigration and asylum” brief of immigration minister Tom Pursglove. According to official statistics, more than a quarter of all people identified as potential modern slavery victims are British, and 97% of all modern slavery referrals concluded in the first half of 2022 were confirmed as genuine by the authorities.
On 10 October, criminal barristers voted to end their strike over pay. 57% voted in a ballot to accept the package offered by Justice Secretary Brandon Lewis: an immediate 15% rise in fees for government-funded defence work, which will also apply to 60,000 cases in the backlog, and additional payments for a range of court preparation work. Crown courts have begun hearing cases as normal again, but it is not clear how quickly the backlog will be reduced.
Aonghus Kelly is the director of Irish Rule of Law International. In our latest episode Aonghus joined Jim Duffy just before he flew to Kyiv last week – before the shelling began – to talk about his organisation and the importance of the work of individual lawyers bringing their skills and expertise to war torn countries, to help the families of victims of war crimes and miscarriages of justice seek justice.
Aonghus talks about the challenges of traversing between common law and civil law cultures in order to help post-war societies set up their own legal systems so that their citizens can seek redress in the courts, both national and international.
He emphasises that other countries have their own cultures that need to be respected, and can only be helped effectively when organisations such as his liaise with local players. Aonghus is currently in Ukraine assisting his colleagues to build mechanisms which will ensure a future reckoning for the war crimes of today.
This war didn’t start in February, he says.
It started in 2014… The reality now is that the number of criminal acts is so enormous it is now presenting problems. And how could it not – in any war… even in the richest jurisdiction in the world.
Law firms in the UK will be banned from providing ‘transactional legal advisory services’ to Russians, as part of an effort to increase sanctions. The decision came after Putin’s announcement of the illegal annexation of 4 Ukrainian regions. The UK Government had previously banned services exported to Russia back in May (including accountancy, management consultancy, and PR), but legal services were deliberately excluded from this. The justification for that exclusion was the Rule of Law principle that everyone has a right to access legal representation. In order to maintain this principle as far as possible, the ban on legal advice has been limited to commercial and transactional services with a vision to impede Russian business’s ability to operate internationally.
The Online Safety Bill is currently making its way through the House of Commons, having reached the report stage in July. The bill’s concept of “legal but harmful” is controversial, and has attracted criticism from high places, not least of all former Supreme Court judge Jonathan Sumption. Lord Sumption joins Rosalind English in this episode to discuss the problems involved in defining this kind of harm and the concepts of “misinformation and disinformation” in the Bill.
Lord Sumption worries about the “sheer randomness” of the process for identifying legal but harmful material, and points out that the internet is absolutely vast; the “scale and speed at which material is added to it every moment of our lives is breathtaking”. The only way, he says, that this can be controlled is by the use of algorithms. But they are incapable of detecting nuance or irony. They are blunt instruments. When you are applying this kind of technique to material at this scale, you are bound to get a very large number of false positives.
“So you will lose an enormous amount of perfectly acceptable material, material that is not only legal but not harmful”.
Four defendants were acquitted by a jury in Bristol Crown Court following their trial for allegations of criminal damage on 7 June 2020 to a statue of the English merchant Edward Colston (1636-1721). The story has been widely covered elsewhere so I will limit this post to a discussion of the reference itself.
The application with which this reference was concerned was whether conviction for the damage done to the statue was a disproportionate interference with the defendants’ right to protest, under the free speech Article 10, right to gather under Article 11, and the right to freedom of conscience under Article 9.
The Attorney General has the power to refer verdicts to the Court of Appeal under section 36 of the Criminal Justice Act 1972 in the event of acquittals to correct mistakes of law so that those mistakes are not perpetuated in the courts below.
It is important to note at the outset that this reference was not directed to the jury’s verdict itself. It was to clarify the law on public protest to avoid confusion.
The Court of Appeal has provided its own press summary of their decision. In the following paragraphs I gather together the salient observations in this decision.
The House of Commons privileges committee has issued its response to the legal opinion of Lord Pannick KC and Jason Pobjoy (on behalf of Boris Johnson) in respect of its inquiry into ‘partygate’. Pannick’s opinion criticised the committee’s proposed conduct by identifying 6 areas where a ‘fundamentally flawed approach’ has been adopted. The most substantial criticism was that the committee did not consider intent to be necessary in proving that Johnson misled the House. The weight behind this argument was that there would be a ‘chilling effect’ on Ministerial comments if unintentional mistakes were held to be contempt. In their response, the committee described this proposition as ‘wholly misplaced and itself misleading’. The response also says that the opinion is ‘founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law’. Questions have been raised as to both the method of publication of the opinion (which was not shown to the committee as is convention) and why the matter was not arranged by the government legal service.
The Home Office plans to re-open immigration detention centres as Suella Braverman indicates that she will take a harder line on immigration than Priti Patel, her predecessor. The plans are for 2 centres to open in order to detain 1,000 male asylum seekers, and to increase the number of people the Home Office can imprison. The plan is specifically linked to the detainment of people before they are sent to Rwanda, at a projected cost of £399m. The new contracts come after the former prison ombudsman, Stephen Shaw, published two comprehensive and highly critical reports on immigration detention, though officials stress they will take this into consideration.
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