The appellants’ challenge focused on the alleged participation of undercover MI5 agents in criminality. Particular emphasis was placed upon the infamous killing in 1989 of Northern Irish solicitor, Pat Finucane, who was involved in representing those accused of terrorist activities. Of note, in 2012, the Prime Minister, David Cameron, stated that there was “state collusion” in the murder . This led to a report prepared by Desmond de Silva QC in December 2012, who expressed “significant doubt” that the murder would have occurred without the involvement of “elements of the State”; and suggested that there were “positive actions by employees of the State” to further and facilitate the murder .
In this case, the focus of challenge was a policy document issued by the Security Service in March 2011 entitled, “Guidelines on the Use of Agents who participate in Criminality – Official Guidance” (“the Guidance”). This document delineates the Security Service’s procedure for “authorising” the participation in criminal conduct by Covert Human Intelligence Sources. Ultimately, the Court had to determine the legitimacy of this policy by reference to the provisions of the Security Service Act 1989, which was the first piece of legislation to put the activities of the Security Service on a statutory footing. The Service had previously been governed by the Royal Prerogative.
The Investigatory Powers Tribunal (“the Tribunal”) found by a majority for the respondents, but the minority disagreed on the issue of whether the relevant policy amounted to an unlawful de facto power to “dispense” with the criminal law (and therefore also whether it was compliant with the ECHR).
In The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB EWCA Civ 356, the Court of Appeal has offered further guidance on vicarious liability following Supreme Court decisions last year in VM Morrison Supermarkets PLC v Various Claimants  UKSC 12 and Barclays Bank v Various Claimants  UKSC 13.
As set out in these posts by Robert Kellar QC and Anna Williams, the ‘law of vicarious liability is on the move’ (in the words of Lord Phillips). This case, however, illustrates certain settled principles emerging. In this case, the decision that Barry Congregation was vicariously liable for the rape of Mrs B by Mark Sewell, an elder of the Congregation, in 1990, was upheld.
Mark Sewell was convicted of the rape (amongst other offences) of Mrs B in 2014. Mrs B suffered episodes of depression and post-traumatic disorder. She brought a claim against, amongst others, the Trustees of the Barry Congregation for the injuries suffered as a result of the rape claiming they were vicariously liable. There was a second limb to the claim related to the investigation and ‘judicial process’ undertaken by the congregation when Mrs B reported the rape to elders in 1991. However, because the High Court found that the Barry Congregation was vicariously liable, the second limb was not considered.
Last week, the Supreme Court considered an interesting interplay between two competing obligations of the state: on the one hand, the duty expeditiously to return a wrongfully removed or retained child to his home jurisdiction under the Convention on the Civil Aspects of International Child Abduction (“the 1980 Hague Convention”); on the other, the principle that refugees should not be refouled, meaning expelled or returned to a country where they have a well-founded fear of persecution.
The parties to G (Appellant) v G (Respondent)  UKSC 9are the divorced parents of an eight-year-old girl (“G”). G was born in South Africa, and was habitually resident until G’s mother wrongfully removed her to England, in breach of G’s father’s custody rights. G’s mother fled South Africa when, after separating from G’s father and coming out as a lesbian, her family subjected her to death threats and violence. On her arrival in England, she applied for asylum and listed G as a dependant on her asylum application.
G’s father applied for an order under the 1980 Hague Convention for G’s return to South Africa. At first instance, Lieven J held the application should be stayed pending the determination of G’s mother’s asylum claim. The Court of Appeal considered that the High Court was not barred from determining the father’s application or making an order for expeditious return
Abortion reform in Northern Ireland has had a fraught history, to say the least. Matters appeared to finally come to a head when in 2019, the UK Parliament enacted the Northern Ireland (Executive Formation etc.) Act 2019 (2019 Act), which created a duty on the Secretary of State to implement abortion reform by following the report of the Committee on the Elimination of Discrimination of Women (CtteEDAW). Nearly two years and two statutory instruments later, Stormont finds itself mired in fresh controversy as long-term abortion facilities in Northern Ireland have yet to be commissioned. So the obvious question arises: what happened?
The route to legal change
At the outset, it should be remembered that when abortion reform was enacted in Great Britain in 1967, it was not extended to Northern Ireland – which was, at that time, the only devolved administration in the UK (with healthcare firmly devolved to Stormont). Nor was abortion reform extended to Northern Ireland when Direct Rule began in 1972. Until 2019, abortions were mostly illegal under sections 58 and 59 of the Offences Against the Person Act 1861 and section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. The only exception to this sweeping regime was the so-called “Bourne exception”, derived from the summing up of evidence in the criminal case off in which Mr Justice Macnaghten had said that an abortion may be lawfully carried out “in good faith for the purpose only of preserving the life of the mother”.
An Amsterdam Court has ordered Ola (a smartphone-hailing taxi organisation like Uber) to be more transparent about the data it uses as the basis for decisions on suspensions and wage penalties, in a ruling that breaks new ground on the rights of workers subject to algorithmic management.
James Farrarr and Yaseen Aslam, who won the landmark victory in the UK Supreme Court in February, led the action by a group of UK drivers and a Portuguese driver, who bought three separate cases against Ola and Uber seeking fuller access to their personal data.
The following is a summary of the case against Ola taxis. Anton Ekker (assisted by AI expert Jacob Turner, whom we interviewed on Law Pod UK here) represented the drivers. He said that this case was the first time, to his knowledge, that a court had found that workers were subject to automated decision-making (as defined in Article 22 of the GDPR) thus giving them the right to demand human intervention, express their point of view and appeal against the decision.
Ola is a company whose parent company is based in Bangalore, India. Ola Cabs is a digital platform that pairs passengers and cab drivers through an app. The claimants are employed as ‘private hire drivers’ (“drivers”) in the United Kingdom. They use the services of Ola through the Ola Driver App and the passengers they transport rely on the Ola Cabs App.
Proceedings are pending in several countries between companies offering services through a digital platform and drivers over whether an employment relationship exists.
By separate requests dated 23 June 2020, the first two claimants requested Ola to disclose their personal data processed by Ola and make it available in a CSV file. The third claimant made an access request on 5 August 2020. Ola provided the claimants with a number of digital files and copies of documents in response to these requests.
Ola has a “Privacy Statement” in which it has included general information about data processing.
All references in this judgment is to the AVG, which is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (GDPR).
Many of the newly vaccinated booked their appointments with gusto and left with a sense of elation. For others the process wasn’t so simple. We see a snapshot of this in a handful of reported cases from the Court of Protection:
In these cases, examined below, the relatives of three care home residents lacking medical capacity, objected to their receiving the vaccine against Covid-19. The CoP applied the requirements of the Mental Capacity Act 2005 and ruled, in each case, that the resident patient’s best interests favoured vaccination.
Mrs E was 80, suffered from dementia and schizophrenia. Her GP approached the subject of the vaccine, but found her unable to understand the nature of the virus, the risks it posed, or the factors weighing for and against vaccination. He considered she lacked capacity but that vaccination was in her best interests. Her accredited legal representative agreed, but her son did not, so the Court was called on to rule.
In Episode 138 Emma-Louise Fenelon speaks to Marina Wheeler QC about the burgeoning field of mediation, and outlines a number of useful tips for practitioners from her own experience as a mediator.
As clinical negligence practitioners will know, in 2016 NHS Resolution became one of the first indemnifiers in the UK to establish a mediation panel with the focus of resolving clinical negligence and personal injury compensation claims. The episode refers to the report evaluating this work so far, available here.
Migrant workers have been essential to the operations of the NHS ever since its inception in 1948. Over the decades, many programmes have been used to encourage and find overseas workers and help them migrate to the UK to be employed in the healthcare system, demonstrating our governments acknowledgment of how important they are. As early as 1949, campaigns were made by the UK government in the Caribbean to recruit NHS staff, through advertisements in local newspapers.
However, throughout the current COVID-19 pandemic, many have argued that migrant workers have not been given the rightful respect or recognition in which they truly deserve. Many of them have been putting their lives on the line every single day fighting against a deadly virus, yet still face immigration insecurity.
There are currently 170,000 overseas NHS workers from 200 countries residing within the UK, many of which have to apply every year for five years to renew their work visas. Some are required to have employers provide certificates of sponsorship for them, and if they do not, then they can be deported at any time despite their critical service to the country. These certificates are necessary for those applying for skilled worker visas, to prove that the conditions of the visa have been met. If they are not signed it becomes increasingly difficult for migrants to apply for the visa needed to remain in the UK. As the pandemic has raged on since March 2020, support for a Private Member’s Bill which would grant migrant NHS workers indefinite leave to remain has grown.
Re B’s application  NIQB 76 was a challenge to a decision to prosecute a soldier for offences going back to 1972. Part of the small but politically divisive cohort of prosecutions arising out of the Troubles in Northern Ireland, Re B provides a classic example of how courts approach the issue of fairness in criminal prosecutions for historic offences.
“B” is a former soldier of the British Army who had been serving in Northern Ireland. On 31 July 1972, the Army launched “Operation Motorman” to clear so-called “no-go” areas in Belfast and Derry, which had become highly problematic and dangerous for security forces at the time.
In the early hours of 31 July 1972, B was part of a company of soldiers deployed in the Creggan Heights area of Derry. He was armed with a 7.62 x 51 mm calibre General Purpose Machine Gun. At around this time, three local people were also in the area: Thomas Hegarty, his brother Christopher Hegarty and their cousin Daniel Hegarty. At some time shortly after 4.15 am, there was a burst of machine gun fire. When it stopped, Daniel Hegarty lay dead on the street, having been shot twice in the head. He was 15 years old. Christopher Hegarty was also wounded in the shooting, but survived.
Women’s rights and gender equality issues have been at the forefront of the news this week. The appalling murder of Sarah Everard, abducted when walking home in London, has elicited a huge social media response. In particular, it has highlighted the problematic phenomenon of victim-blaming directed at women, with advice focusing on teaching woman how to avoid being sexually harassed, rather than educating men about how to be better allies in calling out the misogynistic behaviour that enables harassment. These events coincided with statistics published by the World Health Organisation on Tuesday, which found that one in three women have been physically or sexually assaulted by their male partner across the world, and a survey conducted by UN Women UK published on Wednesday, which showed that 97% of women between the ages of 18 and 24 had been sexually harassed. The latter study also revealed that the majority of women don’t report these incidents because they don’t have confidence that the abuse will be dealt with effectively by the police or the legal system. On Tuesday the government unveiled the new Police, Crime, Sentencing and Courts Bill which, among other changes, has amended the sentencing laws for sexual offenders, enabling them to be put behind bars for longer. The government stated the new legislation was aimed at ‘restoring confidence in the criminal justice system’. However, given current statistics indicating a diminished number of successful rape prosecutions in the last year, it seems unlikely that the mere possibility of tougher sentences for sexual offenders once convicted is going to improve women’s confidence in the justice system. In fact, the new Bill has been substantially criticised by equality and civil liberties campaigners because it will increase the powers of the police to shut down public protest. Under the new law, the Home Secretary would be able to label particular protests as a ‘serious disruption’, enabling the police to then impose stringent conditions on the demonstration. The first detailed discussion of the Bill in Parliament today comes after accusations that the police were ‘too heavy-handed’ in dealing with demonstrators at the Sarah Everard vigil on Saturday evening. However, the Conservative majority in the Commons will almost certainly ensure that the Bill passes.
Sarah Everard, a 33 year old woman living in London, was walking home from a friend’s house at around 9pm on Wednesday 3rd March 2021 when she disappeared without trace. In the days that followed, public appeals for information and press coverage ensured that the case was widely discussed. A profound sense of unease and desperation for her to be found alive was voiced by many, before the worst news was confirmed. Shockingly, a serving Metropolitan Police Officer has been charged with her kidnap and murder.
The most important thing to say about the case is contained in the statement of Sarah Everard’s family. They describe the sort of person that she was and what she meant to them.
One former colleague of Sarah Everard sharing her own memories of her added
she’s a real person, not some hanger on which to display your views about women.
But the case has prompted a wider discussion about how the risk of violence and harassment against women going about their ordinary business has been normalised and accepted as part of everyday life, such that calculations as to how to minimise that risk have become second nature to many. The MP Jess Phillips, speaking during a parliamentary debate to mark International Women’s Day said: “Killed women are not vanishingly rare. Killed women are common”,before reading the names of every woman killed in the UK in the last year where a man has been convicted or charged as the main perpetrator, that exercise taking more than four minutes.
Against this background, an organisation called “Reclaim These Streets” (“RTS”) stated that they wished to “channel the collective grief, outrage and sadness in our community” and decided to hold “a short gathering on Clapham Common, centred around a minute of silence to remember Sarah Everard and all women lost to violence”.The event was described as a “socially distanced vigil” having regard to the restrictions currently in place due to the Covid-19 pandemic. It was scheduled to take place at 6pm on Saturday 13 March 2021, close to where Sarah Everard was last seen alive.
Thank you all for joining the expert speakers for our webinar considering the question of whether India is still a Liberal Democracy on 11th March 2021 at 4.30 – 5.45pm. A link to the recording is below.
Why we should replace ‘revenge porn’ with ‘image based sexual abuse’ and reform the mens rea of the Criminal Justice and Courts Act 2015
The digital world is becoming an increasingly dominant part of daily life. This has been thrown into sharp relief by the current public health crisis, which has seen almost every facet of our lives move online; from socialising, to work, to healthcare, to dating and sex. However, regulation of the digital world is struggling to keep pace with technological change (see the UK Human Rights Blog’s technology section for commentary on this phenomenon). Lawmakers simply cannot keep abreast of the reforms necessary to protect victims from online criminality. One area in which Parliament has made some progress is the sharing of private sexual images, or ‘revenge porn’, as it has come to be known. This article will outline recent developments in the law around sharing of private sexual images; interrogate the terminology used in this area; and suggest reforms to the relevant legislation.
In 2014, the Crown Prosecution Service published guidelines on existing legislation, in an attempt to support convictions for the crime of sharing private sexual images without consent. However, after mounting pressure from campaign groups, the Criminal Justice and Courts Act 2015 (‘the Act’) created the offence of ‘Disclosing private sexual photographs and films with intent to cause distress’, which is punishable by up to two years in prison.
More recently, legislation around sharing private sexual images became the subject of a new campaign, seeking to make the act of threatening to share private sexual images a criminal offence. This campaign was supported by organisations such as Refuge, 44,615 of whose supporters wrote to government ministers requesting a change in the legislation. A reality television star, Zara Mcdermott, added her voice to this campaign in a BBC documentary entitled ‘Zara McDermott: Revenge Porn’. In the documentary, Ms McDermott recounts two instances of having private sexual images shared without her consent. The documentary also covers the harrowing story of Damilya Jossipalenya, who was at university in London when she jumped to her death from the window of her flat. Ms Jossipalenya’s suicide followed a campaign of harassment by her boyfriend, who had threatened to share a video of Ms Jossipalenya with her family in Kazakhstan. This segment of the documentary ends with Ms McDermott explaining why she believes the threat to share private sexual images can be equally as damaging as the act of sharing them.
The UK Human Rights Blog doesn’t write about itself. There is too much of interest in the law of Human Rights to cover and the Blog has been providing this service ever since 1998 when Rosalind English and others started the Human Rights Update. With the know-how and energy of Adam Wagner, this developed into a Blog and last year, under Commissioning Editor, Jonathan Metzer (with the assistance of a small army of contributors), it attracted about 1.1 million visits from readers. In 2017 Rosalind launched LawPodUK to complement the blog, bringing the made for Podcasting voice of Emma Louise-Fenelon to thousands of listeners.
At this time of year, the Blog would normally be preparing for its annual party to thank its contributors. For obvious reasons, this is impossible this year and we decided it would be interesting to organise an online seminar instead. Is a Blogcast a thing?
We wanted to talk about the Rule of Law. Liberated by the earthly constraints of distance and time zones, we thought it would be interesting to bring together three stellar academics to discuss it from an Indian perspective. Joining us from Delhi will be Dr Shruti Kapila (Corpus Christi College, Cambridge), from Oxford, Professor Tarunabh Khaitan – and from our own neighbourhood, Dr Mukulika Banerjee (LSE). You are invited to join us, and we would welcome your contributions (message us or leave a comment below with your questions and thoughts). The Bar Human Rights Committee has been active in this area and we are very pleased its Chair, Schona Jolly QC, has accepted our invitation to take part too. The discussion will be facilitated by Marina Wheeler QC who has written recently about this subject.
It is irresistible to recall that at the time that the Blog was starting out its life, the BJP had secured a major victory when Atal Bihari Vajpayee became the first BJP Prime Minister of India to hold office for a sustained period (he was previously PM for 13 days in 1996). Over three terms, he was to serve over six years in Office – a party record that was surpassed by the current incumbent Narendra Modi in 2020. However, this does not begin to describe the transformation of the Indian polity – most especially after the saffron wave that broke over India in the 2019 general election.
In his seminal article, “Killing a constitution with a thousand cuts: executive aggrandizement and party-state fusion in India,” (2020) 14 Law & Ethics of Human Rights 49, Professor Tarunabh Khaitan examined various steps taken in the Modi first term and concluded that the approach of the administration was undermining all strands of institutional accountability in a way that was, “subtle, indirect, and incremental, but also systemic” and coined the phrase, “killing a constitution by a thousand cuts.”
If anything, Narendra Modi’s second term as PM appears to show signs of a quickening of progress in a crusade to transform India, as Dr Kapila explored in a piece in the FT last year: The annihilation of India’s political opposition is almost complete. For an outsider, perhaps the most startling of the developments was the revocation of the statehood of Jammu and Kashmir and its bifurcation and demotion into two Union Territories – all the while accompanied by the detention of the democratic leadership of the state and the suppression of most forms of communication. The Citizenship Amendment Act was reintroduced and sweeping reforms made of agricultural support – both of these steps provoked widespread protests. The latter was met with repression – with opposition being characterised as “anti-national.” The US organisation, Freedom House has recently downgraded the status of India from “Free” to “Partly Free” in its 2021 annual global survey.
The response of the Courts has been muted. One of the reasons for this is that the rate of High Court Judge vacancies has been allowed to hover around the 40% mark for some years with a consequent impact on the effectiveness of the Courts. This tends to create a culture of impunity.
This might all be thought to be a surprising development in the world’s largest democracy with a sophisticated constitution – whose moving spirit, Dr Ambedkar is honoured by statues all over India and by many monuments in the UK – including a portrait in Gray’s Inn – a development examined by Dr Banerjee in the Sunday Times, Modi parades his hatred of Muslims — and makes a mockery of India’s constitution. It is important to recognise that Indian governing norms have been assaulted before – the most striking being during the period of the Emergency (1975-1977) and the misuse of the powers of Governors to subvert state governments is nearly as old as the Constitution itself. The question may be asked as to what extent all this is a product of a tension when an administration with a substantial mandate seeks to bring about change in a country. Are recent developments just an upsurge of majoritarianism or is India witnessing the degrading of constitutional norms and a fundamental assault on the rule of law?
Come join us, explore these questions, and offer your view about how might we respond. RSVP via Eventbrite here.
The event will also be recorded and available on request.
The High Court will hear a case brought by a mother and her 11-month-old baby, who are arguing that they should not be excluded from the UK government’s ‘Healthy Start’ scheme. The scheme provides vouchers for healthy food, nutritional advice, and vitamins to low-income families, but currently excludes many migrant families, including those who have a right to live and work in the UK, have British children, and earn well below the threshold needed to obtain welfare benefits. The judicial review will challenge the eligibility criteria of the scheme on several grounds: it is inconsistent with the intended purpose of the scheme to benefit those in greatest need, it breaches human rights, and it indirectly discriminates against families from Black and Minority Ethnic backgrounds.
Campaigners have welcomed a government announcement that it will introduce several key amendments to the Domestic Abuse Bill currently being debated in Parliament. In particular, the Bill will make non-fatal strangulation a specific offence, with an attached maximum sentence of five years. This is a significant shift from the previous maximum six months’ sentence if tried in the Magistrates Court under the crime of common assault. The Bill will also expand the definition of coercive behaviour by removing the requirement that the victim co-habit with their abuser, and broaden the scope of the laws on revenge porn by enabling those who threaten to share indecent images to be prosecuted.
The European Court of Justice has ruled this week that air pollution in 75% of the United Kingdom’s urban areas has exceeded legal levels for over ten years. Nitrogen dioxide, which is emitted largely by diesel vehicles, significantly contributes to pollution, and was found by a scathing coroner’s report to have contributed to the death of a nine-year-old girl last year. Imposing charges in urban centres to deter polluting vehicles (‘clean air zones’) is thought to be the most effective means of combating the problem. However, the government has only established one such area, in London, in the four years since research was published. The legal proceedings in the CJEU began before Brexit was concluded, and the pollution limits are still part of UK law. The UK could therefore face financial penalties if it fails to remedy the situation within a reasonable period.
In the courts:
A And B (Minors: placement, faith)  EWHC 455 (Admin): In this judicial review case, the Claimants, two brothers with complex medical and behavioural conditions from a strict Orthodox Haredi Jewish community, argued that the decision of Manchester City Council to offer them respite accommodation in a secular residential home in Manchester, rather than an exclusively Orthodox Jewish home in London, was unreasonable. In particular, it was contended that placement in the Manchester accommodation would prevent the boys from fully manifesting their religious faith, for example, in following kosher dietary rules and observing holy days, contrary to Part III of the Children Act (1989), and possibly Articles 8, 9, and 14 of the European Convention for Human Rights, and the Equality Act (2010). There was an important difference between the two brothers: it was agreed that A should undertake a 12-week assessment placement at one of the homes, whereas B would only stay at the home once a fortnight and during school holidays. Accordingly, His Honour Judge Stephen Davies held that the decision of the council to offer only A a place at the Manchester home was unlawful and in breach of his Article 8 and 9 rights under the ECHR, because he would not be able to cook kosher meals nor perform the required prayers by himself, and so the placement would not allow him to manifest his religion. However, the council’s proposal was not unlawful in relation to B, because the limitations imposed by a fortnightly short overnight stay were not significant enough to breach his rights under the ECHR.
Turner, R (On the Application Of) v Secretary of State for Work and Pensions  EWHC 465 (Admin): The High Court rejected the Claimant’s case that the Secretary of State for Work and Pensions acted unlawfully in withdrawing Errol Graham’s disability benefit, who tragically was found to have starved to death in his flat in 2018. It was contended that the Department for Work and Pension’s (DWP) policy for assessing Employment Support Allowance eligibility was unlawful on two grounds. First, the policy placed the onus on the applicant to show ‘good cause’ for failing to attend appointments, which was incompatible with the objectives of the legislation; and, second, the DWP has an implied duty to inquire as to why the applicant had withdrawn their engagement where they are known to have mental health difficulties, under s.149 of the Equality Act (EA) (2010). Justice Bourne held that the reference to ‘good cause’ did not create an unlawful burden of proof, because it was clear from the policy that the Defendant must also utilise information that they could reasonably obtain, rather than just relying entirely on the applicant to demonstrate their eligibility. In addition, s.149 of the EA did not impose a duty to inquire after individuals, but rather a broad obligation to give due regard to the advancement of opportunity for disabled people generally, which the Defendants satisfied. The Equality and Human Rights Commission was given intervenor status, but the judge considered their submissions to be outside the scope of the ground of challenge.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.