The Weekly Roundup: Boris Johnson, Hong Kong, and Freedom of Religion on Social Media

8 July 2019 by

Image: Annika Haas

In the news

In Hong Kong, protests have continued against a proposed law allowing extradition of Hong Kong residents to China. On Monday 1 July, campaigners delivered a letter to the UK government, petitioning the government to change the status of the British National (Overseas) Passport to include an automatic right to live and work in the UK. The government has yet to formally respond to the petition. However, Foreign Secretary Jeremy Hunt has stated that he is ‘keeping his options open’, and threatened ‘serious consequences’ if China fails to honour the Joint Declaration treaty of 1984 (which stipulated the terms of the 1997 handover).


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Seeking a secret inquest? A lesson in how NOT to go about asking for reporting restrictions

1 July 2019 by

This article, by Bridget Dolan QC, is a slightly edited version of a piece which first appeared on the UK Inquest Law Blog. The original post can be found here.

Re AB (Application for reporting restrictions: Inquest) [2019] EWHC 1668 (QB) 27.6.19 (judgment here)

When seeking any order it always helps to make the right application, to the right court, following the right procedure.   Although when it does go horribly wrong it at least provides valuable learning for the rest of us.

So make sure you are sitting comfortably, and get ready to be educated by Mr Justice Pepperall dishing out a lesson on making an application for reporting restrictions in respect of an inquest.


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Law Pod UK Ep 86: Brexit – The Conservative leadership election and a new EU negotiating team

1 July 2019 by

Law Pod UK logo

Here Professor Barnard examines whether either candidate could sign up to a tariff free no-deal, the so called GATT 24 option, and what the timings for Brexit look like both here and in the EU. 

Law Pod UK is available on SpotifyiTunes,AudioboomPodbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.  

Orthodox housing association can cater only to strictly orthodox

30 June 2019 by

Z & A v another, R (on the application of) v London Borough of Hackney and Agudas Israel Housing Association Ltd [2019] EWCA Civ 1099

The Agudas Israel Housing Association (“AIHA”) owns and allocates social housing exclusively to members of the Orthodox Jewish community.  In these proceedings it was argued that Z, a single mother with four children, had suffered unlawful discrimination when Hackney council had failed to put her name forward for suitable housing. This was because of AIHA’s practice of only letting its properties to members of the Orthodox Jewish community. Although the nominal respondent in these proceedings was Hackney LBC this was only because in practice Hackney nominates properties owned by the AIHA. Primarily the challenge was to AIHA’s allocation policy.

It was common ground that AIHA’s arrangements constituted direct discrimination on grounds of religion. The question was whether this discrimination was lawful. The Divisional court held that it was, being a proportionate means of compensating a disadvantaged community (at [2019] EWHC 139 (Admin)).


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The Round Up: Recent Reports in England and Wales; Human Rights Issues in Asia

30 June 2019 by

US President Donald Trump and Supreme Leader of North Korea Kim Jong-un

In the News

A number of reports and warnings on working conditions for junior judges, the criminal justice system’s treatment of victims of sexual violence, and prison sentencing for individuals with mental health issues have been published this week. 

The Criminal Bar Association has warned that junior judges are being put on what are in effect zero-hours contracts, as their working days have been slashed and requests are being made for them to sit at the bench at impossibly short notice. The Guardian’s legal affair correspondent Owen Bowcott attributes the worsening working conditions to ‘a fresh round of austerity’, noting that the Ministry of Justice has suffered deeper cuts than any other Whitehall department since 2010. Conversely, the MoJ insists that the reason for the change is that the number of cases going to court has fallen and therefore fewer recorders are required. Caroline Goodwin QC, vice-chair of the Criminal Bar Association, said: ‘Exactly how recorders are to fulfil their sitting obligations and maintain any real career progression simply beggars belief.’

Baroness Newlove, the outgoing victim’s commissioner for England and Wales, has warned in her annual report that there has been a ‘breakdown in confidence between victims of sexual violence and the criminal justice system’. She cited recent data that suggests fewer than 2% of victims of sexual assault will see their perpetrator convicted in the courts. Arguing that the criminal justice system had become a ‘hostile environment’ for victims, Newlove called for them to be offered free legal advice before consenting to handing over their phones or personal records, expressed concern over defence barristers cross-examining victims on their previous sexual history, and echoed Sir John Gillen’s call for a ‘large-scale publicity campaign and training for juries’ to counteract rape myths and stereotyping. 

In the Guardian, Fern Champion, a survivor of sexual violence who is campaigning to ensure access to specialist counselling services, observed that rape crisis centres and services are being forced to turn thousands of women away because high demand and long-term underfunding have resulted in waiting lists as long as 14 months. She expressed concern that the Tory leadership candidates Boris Johnson and Jeremy Hunt demonstrate ‘clear inability to understand’ the extent and severity of the crisis. In the same paper, Emily Reynolds called for a duty to be imposed on employers to prevent sexual harassment in the workplace.  

Ten years since the publication of the landmark Bradley Report, a new report by the Centre for Mental Health has recommended further change to ensure that people who suffer from mental ill-health and addictions are not sent to prison when alternatives are more effective. The report finds too many people are sentenced to short prison sentences without any pre-sentence report on their needs, and recommends that Liaison and Diversion services should be resourced to enable effective screening of all those who come into police custody or attend voluntarily. 

In Other News

China, North Korea and Hong Kong have been in the headlines this week for a number of diplomatic developments which engage human rights issues. 

At the G20, President Trump and Xi Jinping agreed to restart trade talks, with the US president saying he would not impose threatened tariffs on Chinese goods, and indicating his readiness to lift a ban on American companies selling components to Huawei. Writing in the Times, Philip Sherwell observed that the American president ‘seemed most at ease among authoritarians’ and deflected questions about human rights abuses in Russia and Saudi Arabia. 

An impromptu early morning tweet at the G20 led to President Trump becoming the first United States leader to enter North Korea, during a hastily arranged meeting with Kim Jong-un at the border with South Korea. The two men then crossed the border to greet the South Korean president, Moon Jae-in. Four months after the failure of Trump and Kim’s last summit in Vietnam, the three leaders talked for just under an hour before announcing that teams of North Korean and US diplomats will resume negotiations on denuclearisation. Kim stated that the meeting indicates an intention to ‘bring an end to the unpleasant past and build a new future’, while Trump said it would ‘start a process and we will see what happens’, and Moon characterised it as ‘a significant milestone in the peace process on the Korean peninsula’. 

Responses have been mixed. Professor Robert Kelly of South Korea’s Pusan National University derided the meeting as a ‘photo op for the 2020 election’ driven by Trump’s ‘lust for optics and drama rather than substance’. Taking a similar tone, Victor Cha, a former American negotiator with North Korea, said ‘theatrics are no substitute for denuclearisation’. In contrast, Pope Francis praised the meeting as a ‘good example of the culture of encounter’. 

In the Times, Richard Lloyd Parry observed that the ‘gaping divide’ between the ideology of the two sides could render ‘Mr Trump’s hop across the border’ meaningless: ’Kim does not want western style capitalism, because of the danger that it would unlock unrest in his cowed and isolated population’. As with Trump and Kim’s February summit, there was no discussion of North Korea’s woeful record of ‘systemic, widespread and grave human rights violations’, in the words of a 2014 UN Report into conditions in the country. 

In Hong Kong, around two million people marched to demand the resignation of leader Carrie Lam a day after she pulled back from a bitterly unpopular proposed law that would allow extradition to China. Lam’s apologises and offers to ‘postpone’ the measure did little to settle public outcry against the bill, which could allow China to exert more influence in Hong Kong to silence critics, undermine civic discourse, and erode the independence of the judiciary. 

In the Courts

  • In Z & Aanor, R (On the Application Of) v London Borough of Hackney & Anor [2019] EWCA Civ 1099, the Court of Appeal unanimously rejected an appeal against a Divisional Court ruling that the Agudas Israel Housing Association’s arrangements for the allocation of social housing, which are currently allocated only to members of the Orthodox Jewish community, were lawful. In his judgement, Lord Justice Lewison pointed with approval to Hackney’s evidence that ‘AIHA’s allocation arrangements are valuable for the purpose of alleviating high levels of child poverty in the Orthodox Jewish community’.
  • In Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1) [2019] EWCOP 22 Mr Justice Hayden identified a number of principles determining whether permission should be granted in applications for the appointment of personal welfare deputies. The three young people on whose behalf the applications were a non-verbal 24-year-old man with autism, epilepsy and severe learning difficulties; a 24-year-old woman with Down’s Syndrome and a learning disability; and a 20-year-old man with severe autism, requiring constant supervision. In his judgement, Mr Justice Hayden emphasised that the ‘defining principle’ of the Mental Capacity Act 2005 was the ‘recognition of the importance of human autonomy’ in the presumption set out at Section 1(2) that ‘a person person must be assumed to have capacity unless it is established that he lacks capacity’.
  • In three applications brought against Serbia and the Ukraine, the European Court of Human Rights declared that the applications were admissible and disclosed a breach of Articles 6 and 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms due to the excessive length of administrative proceedings: Case of Milosavljević v Serbia [2019] ECHR 496; Case of Yeryomina and Others v Ukraine  [2019] ECHR 507; Case of Tseboyev and Others v Russia [2019] ECHR 505.

On the UKHRB

Sale of arms to Saudi Arabia held to be based on flawed decision-making process

28 June 2019 by

London, UK. 11th July, 2016. Human rights campaigners protest against arms sales to Saudi Arabia outside the Defence and Security Organisation (DSO), the Government department responsible for arms export promotions.

In R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020, the Court of Appeal upheld a challenge to the lawfulness of the grant by the UK Government of export licences for the sale or transfer of arms or military equipment to Saudi Arabia for possible use in the conflict in Yemen.

The Court has overturned the decision of the Divisional Court, which was discussed on the Blog here.

The Campaign Against Arms Trade argued that there was a large body of evidence which demonstrates overwhelmingly that Saudi Arabia has committed repeated and serious breaches of international humanitarian law during the conflict in Yemen. CAAT claimed, in particular, that Saudi Arabia has committed indiscriminate or deliberate airstrikes against civilians, including airstrikes which have used “cluster” munitions, and which had targeted schools and medical facilities.

The Court of Appeal held that the decision-making process had been irrational, as it had not included an assessment as to whether there had been previous breaches of international humanitarian law in the past, without which there could not be a proper assessment of the risk of future breaches.


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The Round-up: Saudi Arabia, school protests, and state surveillance

25 June 2019 by

Photo: The Huffington Post

In the news

In a bombshell ruling on Thursday last week, the Court of Appeal (Sir Terence Etherton MR, Irwin, Singh LJJ) held that the UK government’s failure to suspend licences for the sale of military equipment to Saudi Arabia was irrational, and thus unlawful. This was based on a finding that the government had violated Article 2.2 of the EU Common Council Position 2008/944/CGSP, as adopted in the Secretary of State’s 2014 Guidance. Under this instrument, Member States must deny a licence for the sale of arms to other states if there is “a clear risk” that the military equipment exported might be used “in the commission of serious violations of international humanitarian law”. In this case, there was a substantial risk of their use in the conflict in Yemen. The issue will now be remitted to the Secretary of State for reconsideration.

Government misuse of data continues to be a hot topic, as hearings have begun for Liberty’s landmark judicial review under the Investigatory Powers Act 2016. Meanwhile in Parliament, the Joint Committee on Human Rights has launched a new inquiry into ‘Privacy and the Digital Revolution’. The committee received evidence including written submissions from Privacy International, Liberty, the Information Commissioner’s Office. In its findings so far, it has emphasised a widespread lack of knowledge and understanding about how personal data is being used, threats posed by large-scale data collection to freedom of expression and association, and the role of ‘baked-in’ discrimination in data collection algorithms. These findings will supplement the government’s Digital Harms white paper, announced in April.

The Equality and Human Rights Commission has published a report into legal aid and access to justice for discrimination cases. Its recommendations include reforming the telephone service to make reasonable adjustments for disabled users, adjusting the threshold and financial evidence requirements for financial eligibility, and addressing the asymmetry in terms of claims for legal representation between discrimination and other cases. The full report is available here.  

The Court of Appeal yesterday overturned the decision on Nathalie Lieven J in the Court of Protection that doctors could perform an abortion on an intellectually disabled woman who was 22 weeks pregnant without her consent. The decision had been made despite opposition by the woman’s mother and social worker, and had led to some international controversy, including a transatlantic intervention by US Senator Marco Rubio. Lieven J stated in her judgement that it would be a “greater trauma” for the woman to have a baby removed into care post-pregnancy than to have an abortion, stating “I have to operate in [her] best interests, not on society’s views of termination.” She also suggested that the woman, who was considered to have a mental age of between 6 and 9, wanted a baby “in the same way that she would like a nice doll”. The judgement of the Court of Appeal is not yet published.  

In the courts

  • Liberty, R (On the Application Of) v Director of Legal Aid Casework: in 2017, Poole BC issued a public spaces protection order to prohibit rough sleeping in the town centre. This was issued despite advice from the Home Office that PSPOs could not be used for such a purpose. Ms Sarah Walker, a homelessness worker, sought to challenge the decision under s.66 of the Anti-Social Behaviour, Crime and Policing Act 2014, and was refused legal aid for making that challenge. Murray J upheld the Director’s decision to refuse legal aid. Despite submissions about the precariousness of her (and many others’) circumstances, he held that Ms Ward was not seeking a ‘personal’ or ‘material’ benefit as required by paragraph 19(3) of LASPO 2012, read in light of the Ministry of Justice’s 2009 consultation paper. In light of this conclusion, the question of whether a s.66 challenge constitutes ‘judicial review’ under paragraph 19(10) was not addressed.
  • Birmingham City Council v Afsar & Ors: this case related to the recent protests outside Anderton Park School in Birmingham, against the teaching of LGBTQ relationships to young children. Warby J discharged injunctions that had been granted without notice at the end of May, on the basis of a failure to comply with the duty of full and frank disclosure. However, he granted fresh interim injunctions, as he considered that the Council had demonstrated that it would probably succeed at trial in showing a risk justifying an injunction, and that the fresh injunctions would not amount to ‘improper restraint of lawful protest’. A more detailed weighing up of Articles 9, 10, 11 ECHR and Article 2 Protocol 1 awaits in the substantive hearing.
  • Chief Constable of Norfolk v Coffey: a front-line police officer with serious hearing loss applied to be transferred from the Wiltshire Constabulary to the Norfolk Constabulary, but was refused because her hearing fell “just outside the standards for recruitment strictly speaking.” The police officer was awarded compensation in the Employment Tribunal, on the basis of discrimination based on a perceived disability, under s.13 and Sch 1 of the Equality Act 2010. the Chief Constable appealed. In dismissing that appeal, the court emphasised the Chief Constable’s failure to take into account the Home Office guidance, and dismissed any suggestion that front-line duties were different in Norfolk and in Wiltshire as ‘half-baked’.  
  • MacKenzie v The University of Cambridge: a lecturer in the Faculty of Law at the University of Cambridge was dismissed in 2013. Upon a challenge, the Employment Tribunal made an order for re-engagement following unfair dismissal under Part X of the Employment Rights Act 1996. The claimant sought to enforce this decision by issuing judicial review proceedings in the High Court, relying on s.3 and s.6 HRA 1998, Articles 6 and 13 ECHR, and Article 1 of the first Protocol. The court held, however, that ss.115-117 of the Employment Rights Act indicated that an ‘order for re-engagement’ did not create an ‘absolute and indefeasible obligation’ on the employer to re-engage the employee, or an equivalent right in the employee to be re-engaged. Therefore, in the absence of special circumstances, the order was not enforceable in the High Court, and the application for judicial review was dismissed.

On the UKHRB

  • Amelia Walker discusses the investigation into abuse at Brook House.
  • On Episode 85 of Law Pod UK, Emma-Louise Fenelon talks to Jo Moore and Laura Bruce about equality, diversity, and access to the Bar.  
  • Thomas Beasley reviews the Supreme Court’s decision on ‘intentional homelessness’ in Samuels v Birmingham City Council.
  • On Law Pod UK Rosalind English discusses with Alaisdair Henderson the Welsh government’s decision to scrap the M4 Newport relief road.

M4 Newport relief road scrapped: environment v economics

24 June 2019 by

Listen to Alaisdair Henderson on Episode 85 of Law Pod UK

Plans to build a fourteen mile, six lane motorway through the Gwent Levels south of Newport to relieve congestion on the M4 have been scrapped by the Welsh government. The announcement by first minister Mark Drakeford was welcomed by environmentalists, local residents and small businesses who opposed the scheme at last year’s public inquiry. Alasdair Henderson, Dominic Ruck Keene and Hannah Noyce from 1 Crown Office Row with other barristers from Guildhall Chambers (Brendon Moorhouse) and Garden Court (Irena Sabic and Grace Brown) represented Gwent Wildlife Trust and an umbrella of other environmental objectors in the proceedings which lasted from February 2017 to September 2018. All these barristers acted for free. Environmental NGOs such as the Environmental Law Foundation, should be particularly pleased by Drakeford’s acknowledgement the campaigners’ efforts:


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Investigation into abuse at Brook House IRC risks failure to meet requirements of Article 3

19 June 2019 by

MA, BB v Secretary of State for the Home Department (The Equality and Human Rights Commission intervening) [2019] EWHC 1523 — judgment not yet on Bailii but available here.

The High Court has held that an effective Article 3 investigation by the Prisons and Probation Ombudsman (“PPO”) into allegations of serious physical and mental abuse in an Immigration Removal Centre requires the PPO to have powers are to compel witness attendance, hold hearings in public and ensure that the claimants have properly-funded representation to enable them to review and comment on witness evidence and provide lines of enquiry.

Background: The Panorama exposé

MA and BA were detainees at Brook House Immigration Removal Centre (“the IRC”). Prior to their detention, both had served prison sentences. MA’s asylum claim had been refused and BA’s refugee status had been revoked following his sentencing. Both have mental illnesses.

The IRC is operated for the Home Office by the private company G4S, with healthcare services provided by NHS England and G4S Medical Services.

On 7 September 2017 the BBC’s Panorama programme aired a documentary Undercover: Britain’s Immigration Secrets. This showed footage recorded secretly by a Detention Custody Officer (DCO) at the IRC.


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Supreme Court quashes decision to declare mother ‘intentionally homeless’

18 June 2019 by

Samuels v Birmingham City Council [2019] UKSC 28

In unanimously allowing an appeal against a decision to declare the appellant intentionally homeless due to her inability to pay her rent, the Supreme Court affirmed that non-housing benefits are not designed to create a surplus that can be used to account for insufficient housing benefits.

Factual Background

The appellant, Ms Samuels, was an assured shorthold tenant of a property in Birmingham, where she lived with her four children. Having fallen into rent arrears she was given notice to leave and subsequently applied to the respondent council as homeless under Part VII of the Housing Act 1996. The council instead decided that she was intentionally homeless on the grounds that her current accommodation was affordable and it was only due to the appellant’s deliberate decision not to pay the rent that had resulted in her becoming homeless.

At the time that Ms Samuels left the property she was entirely dependent on social security benefits which amounted to a total of £1,897.84 per month. This figure comprised: (a) housing benefit (£548.51); (b) income support (£290.33); (c) child tax credit (£819.00); and (d) child benefit (£240.00). Excluding the housing benefit, the total available for living expenses was £1,349.33.

Ms Samuels’ rent was £700, leaving a shortfall of £151.49 when compared to her housing benefit, whilst she calculated her other monthly expenditure to be £1,234.99, comprising: (a) food/household items (£750); (b) electricity (£80); (c) gas (£100); (d) clothes (£50); (e) TV license (£43.33); (f) school meals (£43.33); (g) travel (£108.33); (h) telephone (£20); and (i) daughter’s gymnastics (£40).

Overall, Ms Samuels was left in the unfortunate position of having expenses totalling £1,934.99 with only £1,897.84 worth of social security benefits to cover these expenses.


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Law Pod UK Ep. 84: Widening access at the Bar

17 June 2019 by

Law Pod UK logo

In Episode 84, Emma-Louise Fenelon talks to Jo Moore, Head of Outreach at 1 Crown Office Row, and Laura Bruce, Head of Programmes and Partnerships at the Sutton Trust. They discuss improving equality and diversity at the Bar by improving access to the Bar for future generations. Listen here.

The podcast refers to Sutton Trust’s ‘Student Destinations Report 2006-2016’

More information and how to get involved:

1 Crown Office Row’s outreach commitment and events, here.

The Sutton Trust’s Pathways to Law, and other programmes, are here

Inner Temple’s outreach work, details here

To speak to Jo about getting involved with outreach, email her at jo.moore@1cor.com. To speak to Laura about getting involved with the Sutton Trust email her at info@suttontrust.com.

Law Pod UK is available on SpotifyiTunes, AudioboomPodbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.  

A Landmark Defamation Case and Child Spies: The Round Up

17 June 2019 by

Conor Monighan brings us the latest updates in human rights law

spy

Credit: The Guardian

In the News:

The High Court has heard how MI5, which is responsible for domestic spying operations, may have unlawfully retained the data of innocent civilians for years.

Liberty’s challenge centres on the Investigatory Powers Act 2016, which gives the security services the ability to access digital devices and electronic communications. It alleges that the system of information gathering used by the security services is illegal.

As part of a systemic judicial review, the High Court was told MI5 had realised that there were problems with their data handling in January 2016, but that the Prime Minister and Home Secretary were only informed in April. It was also alleged that MI5 has been holding sensitive data without proper safeguards. Liberty argued that the security services had submitted warrant applications which misled judges, because the agencies had incorrectly suggested sensitive data was being properly protected.

Much of the case will be heard in private over the next week.

In Other News….

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“No revolution” says the Supreme Court as it rules on defamation

17 June 2019 by

Lachaux v Independent Print Ltd and another [2019] UKSC 27

The Supreme Court has unanimously held that the Defamation Act 2013 altered the common law presumption of general damage in defamation. It is no longer sufficient for the imposition of liability that a statement is inherently injurious or has a “tendency” to injure a claimant’s reputation. Instead, the language of section 1(1) of the Act requires a statement to produce serious harm to reputation before it can be considered defamatory.

The factual background

Mr Bruno Lachaux, a French national working in the United Arab Emirates, had an acrimonious divorce from his British wife, Afsana. In January and February 2014 British newspapers published articles making allegations about Mr Lachaux’s conduct towards Afsana, including that he had been violent and abusive, had hidden their son’s passport to stop her from removing him from the UAE and had falsely accused her of abducting him.

Mr Lachaux brought libel actions against three newspapers in respect of five articles.


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Supreme Court: capping benefits does not breach human rights of children

12 June 2019 by

R (DA & Ors) v Secretary of State for Work and Pensions; R (DS & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21

The Supreme Court has rejected a challenge by lone parents with young children to the reduced benefit cap, holding by a majority of 5-2 that its discriminatory effects are justified.   Although disappointing for campaigners, the judgment helps to clarify many aspects of discrimination law in the context of social and economic policy.

Background: the benefit cap

The benefit cap was first introduced in the Welfare Reform Act 2012.  It applies as a limit on the total amount of welfare benefits that one household can receive if they are out of work, initially set at £500 per week (or £26,000 per annum) for families with children. As the limit applies irrespective of family composition, it has a severe effect on larger families and those such as lone parents with young children who may find it difficult to avoid it by finding work.


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Round Up 10/6/19: New guidance on the liability of local authorities and trials without jury for historical allegations in Northern Ireland…

10 June 2019 by

1016

Dennis Hutchings outside the Supreme Court. Credit: The Guardian.

In a week where the Prime Minister’s departure seemed to make barely a ripple, sifting out the key developments could be considered something of an unenviable task. Luckily, establishing the importance of the weeks events was made considerably simpler on Thursday, after judgement was handed down in the case of Poole Borough Council (Respondent) v GN (through his litigation friend “The Official Solicitor”) and another (Appellants) [2019] UKSC 25. The case concerned alleged negligence on behalf of Poole Council in placing a family in social housing on an estate next to neighbours known to persistently engage in antisocial behaviour, and the council’s liability for subsequent harm suffered by the vulnerable children in that family. Elizabeth-Anne Gumbel QC, Iain O’Donnell, Duncan Fairgrieve and Jim Duffy of 1 Crown Office Row represented the family, with Philip Havers QC and Hannah Noyce appearing on behalf of the AIRE Centre and Martin Downs making written submissions for the Coram Children’s Legal Centre.

In the Court of Appeal, the council’s application to strike out the family’s claim that they were owed a duty under the common law given the statutory backdrop of the Children Act 1989 was allowed. In that judgement, the court identified two issues as being of chief importance. Firstly, as articulated in X (Minors) v Bedfordshire County Council and Hill v Chief Constable of West Yorkshire [1989] AC 53, the court recognised the risk that allowing liability in negligence would serve to complicate decision-making in a difficult field and potentially drive social workers towards defensive decision-making. Secondly, the court held that there was no liability for the wrongdoing of a third party, even where such behaviour is foreseeable. This reflected the decisions in Mitchell v Glasgow City Council and Michael v Chief Constable of South Wales.

The Supreme Court undertook a rigorous analysis of the case law pertaining to the liability of local authorities for harm caused by failure to perform their functions under statute, in particular in relation to the exercise of statutory duties owed to children. Of principle importance was the nature of any assumption of responsibility for the claimant’s plight accepted by the local authority or pubic body.

The court concluded that the public policy defence illustrated in X v Bedfordshire, which dismissed on pure policy grounds the existence of a duty of care owed by local authorities towards children with whom they came into contact in the performance of their functions under the Children Act 1989, was no longer good law. The existence of any duty instead required examination of the specific facts of the case applied to the general principles outlined in Robinson v Chief Constable West Yorkshire Police. These were summarised as:

  • The law should adopt an incremental approach to novel situations, guided by established categories of liability, rather than basing decisions on their assessment of the requirements of public policy.
  • Consideration ought to be given to the distinction between harming the claimant and failing to protect the claimant from harm.
  • Public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except as specified to the contrary in legislation.

The court concluded that although the local authority could be liable, the necessary grounds were not satisfied in the present case. In particular, it was held there was no evidence to suggest the council had accepted responsibility for the claimants, statutory obligations being insufficient in themselves to create a duty of care. Furthermore, the council’s failings did not amount to a breach of duty. Consequently, although the family’s case may serve to protect the rights of individuals in similar circumstances, their individual case failed on the facts.

In a further Supreme Court decision this week, a retired British soldier’s appeal against the decision of the Northern Ireland courts that he should be tried by a judge rather than a jury was unanimously rejected – In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland) [2019] UKSC 26. The case concerns the fatal shooting in 1974 of John Pat Cunningham by soldiers of the Life Guards after the Legacy Investigation Branch concluded Mr Hutchings should face prosecution over the incident. The court held that trial by jury should not be assumed to be the only means of achieving fairness in the criminal justice process. The decision is likely to further fuel the developing controversy surrounding the prosecution of soldiers for historical actions in Northern Ireland.

In the Court of Appeal, judgement was handed down in the case of KA (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 914. KA claimed asylum after describing threats made against his safety by the Taliban due to his father’s service in the Afghan Army. However, the circumstances of his fleeing Afghanistan were rejected by the Upper Tribunal as lacking credibility. Allowing his appeal, McCombe LJ held it would be unsafe to reject the appeal of a vulnerable minor on such grounds when the Respondent and the First Tier Tribunal based their assessment on a flawed interpretation of the test set out in s. 8(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

In the news this week…

The Prime Minister officially stood down on Friday, remaining only in post until a new Conservative leader is appointed. The first days of what might become a lively campaign to replace her saw former Linklaters associate Dominic Raab suggest Parliament could be prorogued to prevent the House of Commons attempting to thwart a no-deal Brexit, former Foreign Secretary Boris Johnson represented by a QC in the High Court in relation to (now dismissed) charges of misconduct in public office, and the Secretary of State for Environment, Food and Rural Affairs admit to class A drug use two decades ago.

The week also saw Donald Trump undertake a state visit to the United Kingdom, part of which was devoted to remembrance services for the 75th anniversary of the D-day landings. The Peterborough by-election saw Labour narrowly keep the seat vacated after the conviction of Fiona Onasanya, defeating the challenge of the Brexit Party candidate by under 700 votes.

Finally, concerns about the rule of law in the Middle East came to the fore again after the main witness in the case of a Russian businesswoman convicted of embezzlement in Kuwait was jailed for forging documents crucial to the verdict. Maria Marsha Lazareva was previously sentenced to 10 years hard labour by a Kuwaiti court on charges of embezzlement which are widely considered spurious.

Hamad Al-Allayan, the auditor of the Kuwaiti State Audit (Chamber of Accounts) was sentenced this week to six months’ imprisonment by the Kuwaiti Court of Appeal. He was found guilty of forging documents decisive to the conviction of Lazareva.

The Kuwaiti Criminal Court has quashed Lazareva’s initial conviction and set a new trial date for June 9th. However, she remains in detention pending her re-trial. As the mother of a US citizen, her plight has attracted international concern and the interest of prominent Americans, including the brother of former President George W Bush, who was quoted as saying:

“I’d hate to see U.S.-Kuwait relations damaged by this incident. But there are forces within the government that are creating this horrible situation.”

The case joins an increasing number of detentions of western nationals in middle eastern states on charges often considered to be motivated by domestic concerns. These include those of West Hampsted mother Nazanin Zaghari-Ratcliffe and former British Council worker Aras Amiri in Iran, and now released British academic Matthew Hedges in the United Arab Emirates.

On the UKHRB:

  • Rajkiran Barhey gave a detailed account of the decision in Poole Borough Council v GN and another
  • Rosalind English reported on Jonathan Sumption’s recent Reith Lectures and reviewed Jamie Metzl’s new book “Hacking Darwin”
  • Sapan Maini-Thompson discussed the ongoing protests concerning LGBT teaching in a Birmingham School.

On LawPod UK:

Events:

  • Brexit’s effects on citizens, human rights and immigration, 11th June at City University. See here.
  • The Prosecution of International Crimes in the UK, 18th June with the Human Rights Lawyers Association. See here.
  • Foundational Concepts in Constitutional Theory, 10th-12th July with the UCL Faculty of Law. See here.

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