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On Thursday, the High Court dismissed a claim for judicial review brought by the Cabinet Office, regarding a notice issued by the Chair of the COVID-19 Inquiry which requested the disclosure of correspondence between former Prime Minister Boris Johnson and his senior advisers. The Cabinet Office argued the Inquiry Chair’s notice was unlawful because it required the disclosure of significant quantities of ‘unambiguously irrelevant’ material. It argued it should be allowed to redact obviously irrelevant detail from the documents, including from Mr Johnson’s WhatsApp messages. The Chair of the Inquiry, Baroness Hallett, maintained that s. 21 of the Inquiries Act 2005 empowered her to request and see unredacted materials which could be relevant to the investigation. The High Court agreed. It held that the disclosure of some irrelevant documents did not render the request for information unlawful. An enquiry of this nature must be able to ‘fish’ for documents; to make informed ‘but speculative requests for documents relevant to lines of inquiry, or documents which lead to new lines of inquiry’. The government has said it will not appeal the decision.
Traditionally, the courts have been extremely reluctant to impose a positive duty of care on the police to protect or warn members of the public who may be potential victims of crime. This sort of liability, it is thought, would lead to defensive policing.
In a leading authority on this issue, Hill v Chief Constable of North Yorkshire Police (the Peter Sutcliffe case 1989), the House of Lords said that the imposition of a duty of care to individual members of the public would be detrimental.
“A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime”.
In Episode 187 of Law Pod UK, Rosalind English discusses with barrister Conor Monighan of 5 Essex Court the implications of this decision for the police and other public authorities in the UK. I would urge anyone interested in this subject not only to listen to the podcast but also to read Conor’s deep dive into the case in his recent post on UKHRB: A Common Law Duty of Care to Issue an Osman Warning? In that post you will find references to previous authorities on police liability in this context, with full citations.
And … please keep the feedback rolling! It will only take you a couple of minutes to fill in this very short anonymous survey. Thank you in advance. www.surveymonkey.co.uk/r/LawPodUK
the repeated detention of the claimants – foreign nationals with limited leave to remain – when they returned to the UK from travelling abroad, so that they could be questioned about their NHS debts, was unlawful;
the policy pursuant to which the claimants were detained (the “Policy”) was unlawful because it contained a positive statement of law which was wrong or, alternatively, because it failed to provide a full account of the legal position;
the Policy was unlawful because it was unpublished; and
the Secretary of State for the Home Department (“SSHD”) was in breach of the public sector equality duty (“PSED”) under s.149 of the Equality Act 2010.
In reality, the facts carried the day. This was true not only in relation to the unlawful detention issue, but also on some other points – for example, the SSHD failed to evidence any public interest in not publishing the Policy or any consideration given to the equality impacts of the exercise of the relevant powers of detention. Insofar as there are lessons to be learned, they are likely to be found in the criticisms levelled at the evidence (or lack thereof) provided by the SSHD.
The advent of the Human Rights Act 1998, and the incorporation into domestic law of the Article 2 right to life, has transformed coronial investigations and inquests over the last two decades. Lord Bingham’s magisterial creation of the ‘enhanced’ investigation and conclusion in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 (later adopted by Parliament) gave coroners greater responsibility to hold the state to account for deaths. That, in turn, has significantly improved the ways in which all inquests are conducted, not just those where Article 2 is found to be engaged. Inquests are no longer haphazard affairs. They are (ordinarily) carefully planned and structured processes; and their participants, the ‘interested persons’, are far more involved in assisting coroners with the task of identifying the proper scope of their investigations and the lawful ambit of their conclusions.
Article 2, then, has already conquered and occupied the terrain of the coroners’ courts and it is only at the frontiers of its application that legal skirmishes still occur. One such fight is the case of R (Maguire) v HM Senior Coroner for Blackpool & Fylde and another [2023] UKSC 20, which was argued before the Supreme Court on 22nd and 23rd November 2022, and in which judgment was given on 21st June 2023.
The central issue in the case was whether Article 2 required an enhanced inquest into the death of highly vulnerable woman, Jackie Maguire, who had become seriously unwell while in a private residential care home and had later died in hospital. The Supreme Court held unanimously that it did not. More importantly, in doing so, it took the opportunity to provide a detailed and authoritative account of how Article 2 applies to coronial investigations and inquests.
Further details of the sinking of a Greek fishing boat carrying up to 800 people – including up to 100 children – have come out, placing the Greek authorities under intense scrutiny. The tragedy, which occurred on Wednesday 14th June, has seen the confirmed deaths of at least 78 people and only 104 confirmed survivors – with no women or children surviving. The Greek authorities have so far claimed that the boat had no issues navigating until close to the time when it began to sink and that the people onboard had refused help from the Greek coastguard. However, marine tracking evidence obtained by the BBC suggests that the overcrowded fishing vessel was not moving for at least seven hours before it capsized. This has raised questions over the actions of the Greek coastguard, prompting the UN to call for an investigation into Greece’s handling of the situation amid claims more action should have been taken earlier to initiate a full-scale rescue attempt. Up to 500 people are still unaccounted for. In slightly more positive news, nine of the people traffickers involved in the disaster have been apprehended by Greek police and pled not guilty in a Kalamata court to trafficking charges.
The Italian prosecutor for Padua, Valeria Sanzari, has demanded the cancellation of 33 birth certificates of children born to lesbian couples dating back to 2017, saying the name of the non-biological mother should be removed. The mother whose name is eliminated will no longer be able to fulfil a series of tasks, including picking up her child from school without the written permission of her partner. If the legally recognised parent dies, the children could be taken from the family home and become a ward of the state. This comes against the backdrop of the election of Meloni’s right-wing government and a debate in Italy’s lower house on a new law that would make it a crime, punishable by up to two years in jail, for couples who go abroad to have a surrogate baby, even in places where it is legal. Critics of the move, such as Italian parliamentarian Alessandro Zan, have called the proposal “cruel [and] inhumane”, saying it will result in children being “orphaned by decree”.
In the latest episode of Law Pod UK, Robert Kellar KC discusses the developing law on NFTs with Victoria Walters, library learning advisor at the Bristol campus of the University of Law. We are grateful to Victoria and the University for the permission to repost this interview.
As Robert explains, the “token” is a crypto token that exists on a decentralised network, or a blockchain. The tokens are minted using blockchain technology, and can be transferred and traded. As for “non-fungible” – something that is fungible is interchangeable with other things, like money. Something is non-fungible is unique, like a piece of art.
Hear more about this interesting marketplace involving exchanges of considerable value by listening to Episode 186 of Law Pod UK.
Plus: we want your feedback! Please take a couple of minutes to fill in this very short anonymous survey. Thank you in advance. www.surveymonkey.co.uk/r/LawPodUK
The inquiry into the government’s handling of Covid has begun hearing evidence in public. The first topic of discussion, Chair Baroness Hallett’s Module 1, is pandemic preparedness. Hugo Keith KC, Lead Counsel to the Inquiry, told the hearing that the impact of lockdowns on society had not been planned for, while arrangements for a no-deal Brexit had ‘drained resources and capacity’ in Whitehall. Subjects which reportedly had not been considered include the impact on education and employment support. Lady Hallett said three central questions need to be answered by the probe: Was the UK properly prepared for a pandemic? Was the response appropriate? And what can we learn for the future? Those invited to give evidence include David Cameron and George Osbourne, who will speak to the effects of public sector cuts on pandemic preparedness.
A mother-of-three has been imprisoned for over two years for inducing her abortion after the 24-week limit. Carla Foster ordered medication under the Lockdown ‘pills by post’ scheme, having lied that her pregnancy was within the 10-week category that would qualify for her for at-home abortion treatment. The prosecution argued that Foster’s online searches, which included the request ‘how to lose a baby at six months,’ indicated comprehensive premeditation. The judge recognised the defendant’s sense of remorse, her depression and that three children, one of whom has special needs, depended on her, but regretted that a guilty plea had not come earlier and passed a sentence of 28-months (including 14 to be spent on licence). A number of women’s organisations signed a letter imploring the judge to pass a lenient sentence, while Labour MP Stella Creasy has called for a reform to the law. Some commentators have argued the sentence may discourage other women who miscarry from seeking medical help and that custodial sentences in these cases are of no benefit to the public.
‘There may be exceptional cases where the circumstances compel the conclusion that the absence of a remedy sounding in damages would be an affront to the principles which underlie the common law. Then the decision in Hill’s case should not stand in the way of granting an appropriate remedy.’Per Lord Nicholls in Brooks v The Commissioner of Police [2005] UKHL 24.
What such an exceptional case might look like has remained a matter of speculation. Until now. On 9 May Ritchie J handed down judgment in Woodcock v Chief Constable of Northamptonshire [2023] EWHC 1062 (KB), which, if it remains good law, is likely to have a significant impact upon the law concerning the liability of the police in the tort of negligence.
In Woodcock, the High Court found that the police were under a positive common law duty to warn the Claimant of a potential danger. It found the police had assumed responsibility towards the Claimant by advising her to set up a ‘protective ring’ around her property and, in the alternative, that this was a rare ‘special / exceptional’ case in which there was a positive duty to warn. The court also overturned the trial judge’s decision on causation, saying that although the learned judge’s findings on this point were not ‘wrong’ they were ‘unjust’.
Given the nature of the court’s conclusions, it is likely the case will be appealed to the Court of Appeal.
Facts
The Claimant had been in an abusive and coercive relationship with RG [61]. The trial judge found that, due to an increase in the number and seriousness of threats, the Chief Constable agreed officers would stay in a police car outside the Claimant’s home during the night of 19 March 2015 (albeit for an indefinite period depending on other policing needs) [79].
Officers also agreed a safety plan with the Claimant which included advice that the Claimant should call the police if RG attended her property and that she should make neighbours aware of the issue [80]. The Defendant also unsuccessfully ‘deployed a substantial group of officers to locate and arrest RG’ [82].
At 7:32am on 19 March 2015 a neighbour called 999 and said RG was outside the Claimant’s property, the Claimant would be leaving in a few minutes and RG was probably planning an attack [84]. Officers were dispatched to the Claimant’s address. However, neither the neighbour nor the call handler rang the Claimant to warn her of the danger.
The Claimant subsequently left her house. RG stabbed her with a large knife 7 times and was subsequently convicted of attempted murder [89; 5].
The UK’s role in the torture of detainees following the 9/11 attacks, is in question. Last week, the investigatory powers tribunal announced that, on grounds of public interest, they will examine complaints “of the gravest possible kind” which were brought by Mustafa al-Hawsawi against the UK’s intelligence services. Al-Hawsawi was detained in secret CIA prisons and tortured between 2003 and 2006, having been accused of aiding the September 11 attacks. It is alleged that in this time, UK intelligence “aided, abetted, encouraged, facilitated, procured and/or conspired” with the US in Al-Hawsawi’s torture. A related issue concerning the conduct of the CIA is also being heard by the Supreme Court in the case of Zubaydah v Foreign and Commonwealth Office and others next week.
The head of the Equality and Human Rights Commission, Kishwer Faulkner, is facing an independent investigation into alleged misconduct. It is reported that around 40 complaints have been made by 12 members of staff against Faulkner, alleging harassment, bullying, and discrimination. It is also alleged that Faulkner described Emma Laslet, a trans contestant on ‘Brain of Britain’, as ‘a bloke in lipstick’ – leading to claims of discriminatory language. Her supporters claim that the investigation is a witch-hunt and coup d’etat, motivated by employees critical of Faulkner’s approach to trans rights after she proposed changes to the definition of sex in the Equality Act 2010. These changes would clarify that ‘sex’ means ‘biological sex’ – a move that would clarify the position of trans people in sport, and ensure that only ‘biological women’ can use single-sex spaces. Faulkner also wrote to the Scottish government early in 2022 urging them to pause their proposed reforms to gender recognition (which were ignored). The investigation has since been paused while the Commission seeks legal advice on the impact of leaked confidential information as a result of the original report on this investigation by Channel 4 News.
Rishi Sunak is expected to be consulting his ethics adviser over allegations that Suella Braverman mishandled a speeding offence charge. The Home Secretary is alleged to have attempted to arrange a private speed awareness course for an offence committed in the summer of 2022, rather than accept three points on her license and a fine or, alternatively, attending a course as part of a group of offenders. She reportedly consulted civil servants and a political advisor about the special arrangements. Sir Philip Rycroft, a former Permanent Secretary, commented that the actions appeared to be a “real lapse of judgment.” Kier Starmer has called for the Prime Minister to sack his minister if she is found to have breached the Ministerial Code. Braverman lost her position as home secretary under Liz Truss for a breach of the Code involving the transfer of official documents through her private email.
Professor Richard Susskind OBE is the IT adviser to the Lord Chief Justice of England and Wales, author of several books on technology and the law, and has been warning the legal profession about the effects of computing power on the law for decades. He is described by his publisher OUP as “the leading global authority on the future of legal services, based on 40 years of work in the field”
The latest edition of his book Tomorrow’s Lawyers predicts more change in law in the coming two decades than we have seen in the past two centuries.
Listen to Richard in discussion with Rosalind English in Episode 185 of Law Pod UK.
Finally, we at LawPod UK want your feedback! Please take a couple of minutes to fill in this very short anonymous survey. Thank you in advance.
On Wednesday, it was announced a committee of MPs will examine the Metropolitan Police’s treatment of protesters at the Coronation of King Charles III on Saturday 6 May. A total of 64 people were arrested on the day of the coronation, 52 of which were made because police feared protesters intended to disrupt proceedings. The Met expressed “regret” over the arrest of six members of the anti-monarchy protest group, Republic, who were detained on suspicion they were equipped for locking on – a new offence introduced by the Public Order Act 2023 which only came into force on the 3 May. The Met’s heavy handedness has been widely criticised, but many commentators have focused attention on weaknesses in the legislation itself, calling it “too wide” and “too rushed”. There are fears police and public confusion over the scope of the Act will negatively affect protester’s rights in the future.
On May the 10th the government announced that a fundamental change to the Retained EU Law Bill. As you will hear from Episode 184, I discuss with Sam Willis of the Public Law Project the so called sunsetting clauses in the bill which would have repealed all EU legislation at the end of the year, with the exception of any EU law that ministers decided to keep. Since this episode was recorded, business Secretary Kimi Badenoch has said that the the government is to publish a list of the retained laws that will be scrapped by the end of 2023. Instead of thousands of unspecified EU laws expiring by the end of the year, a mere 600 out of the 5000 odd pieces of legislation from the EU era will be repealed. So please bear this in mind when listening to our discussion.
Here are the full citations for the cases referred to in the episode:
Walker v Innospec Ltd [2017] UKSC 47, [2017] 4 All ER 1004 Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307, [29] (Lord Bingham), cited as continuing to be applicable in Peninsula Securities Ltd v Dunnes Stores Ltd (Bangor) Ltd [2020] UKSC 36, [2020] 3 WLR 521, [49] (Lord Wilson JSC) (both applying Practice Statement (Judicial Precedent) [1966] 1 WLR 1234) Lock v British Gas Trading Ltd [2016] EWCA Civ 983, [2017] 4 All ER 291
Tunein Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441 (26 March 2021)
And here are the following pensions cases that are relevant to this issue:
Case C-17/17 Hampshire v Board of the Pension Protection Fund [2019] ICR 327 Case C-168/18 Pensions-Sicherungs-Verein VVaG v Günther Bauer [2020] 2 CMLR 26 And see Hansard for the fourth sitting of the Public Bill Committee on the 22 November 2022, at pages 168-169, for the Minister’s following comments:
“the Department for Work and Pensions does not intend to implement the Bauer judgment through the benefits system, as it is a European Court judgment that does not fully align to the UK private pension protection scheme”
On 29 November 2019 Usman Khan attended a rehabilitation event at Fishmongers’ Hall and stabbed five people, two fatally. On 2 February 2020 Sudesh Amman attacked two passers-by in Streatham High Road with a knife before being shot dead by police. Both men had previously been convicted of terrorism offences. Both men had been automatically released on licence halfway through their custodial sentences.
Following these attacks, on 3 February 2020, the Secretary of State for Justice made a statement to the House of Commons highlighting that in the interests of public protection immediate action needed to be taken to prevent automatic early release halfway through an offender’s sentence without oversight by the Parole Board. He announced that terrorist offenders would now only be considered for release once they had served two-thirds of their sentence and would not be released before the end of the full custodial term without Parole Board approval. This proposal was passed in England and Wales with the enactment of the Terrorist Offenders (Restriction of Early Release) Act 2020. It was extended to Northern Ireland by the Counter Terrorism and Sentencing Act 2021 (“the Act”).
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