On 30 July 2020, the Crown Prosecution Service published its performance statistics on sexual violence cases for the year 2019-20, which vindicate long-held concerns about the “damning” number of cases being lost amid “under-resourced” investigations.
In response to a legal challenge brought by the Joint Council for the Welfare of Immigrants (JCWI), the Home Office has scrapped an algorithm used for sorting visa applications. Represented by Foxglove, a legal non-profit specialising in data privacy law, JCWI launched judicial review proceedings,, arguing that the algorithmic tool was unlawful on the grounds that it was discriminatory under the Equality Act 2010 and irrational under common law.
In a letter to Foxglove from 3rd August on behalf of the Secretary of State for the Home Department (SSHD), the Government Legal Department stated that it would stop using the algorithm, known as the “streaming tool”, “pending a redesign of the process and way in which visa applications are allocated for decision making”. The Department denied that the tool was discriminatory. During the redesign, visa application decisions would be made “by reference to person-centric attributes… and nationality will not be taken into account”.
The UK Human Rights Blog is committed to continuing to raise awareness of the vital issues that were brought to public attention in May and June. In this piece, we look at diversity at the bar, with particular focus on the commercial bar.
This article is largely an edited version of a piece which appeared in The Lawyer online in April this year and may be found here. We are very grateful to The Lawyer and to Harry Matovu QC for their kind permission to reproduce that content here.
Although a record number of black and Asian minority ethnic (BAME) barristers were awarded silk status this year (a total of 22), there is still a large diversity gap in the industry. BAME barristers accounting for just under 8 per cent of the QC population overall, according to the latest figures from the Bar Standards Board (BSB). Within the commercial bar, the representation of BAME barristers is particularly low, with only 8 per cent of barristers at a range of leading commercial sets being BAME.
The umbrella term of BAME also requires nuance. According to the BSB, of the 3,364 BAME barristers in this country, 1,497 are Asian or mixed, while 479 barristers are black. The difference is even greater at silk level; just 20 of the 149 BAME silks are black.
In a nutshell, therefore, BAME barristers as a whole are underrepresented, and under that umbrella, the representation of black barristers and silks is particularly low.
British SAS soldiers in Helmand province, Afghanistan. Credit: The Guardian
The final week of the legal term was set against the backdrop of new restrictions on the ability of different households to meet across a large part of northern England. The main restriction takes the form of a prohibition on individuals entering households other than their own to visit friends and family. As has become traditional over the last few months, the guidance was announced with a promise to bring forth new laws in the future, to confer actual powers of enforcement.
In addition, many of the week’s dominant news stories carried a prominent legal flavour:
The High Court has today handed down judgment in R (EA and Anor) v Chairman of the Manchester Arena Inquiry  EWHC 2053 (Admin) refusing permission for judicial review to a group of survivors who unsuccessfully sought core participant status in the forthcoming inquiry into the Manchester Arena bombing attacks. A full legal analysis of the decision will follow. This article provides a summary of the judgment and its context.
Inquiries and inquests into public disasters and terrorist attacks inevitably, and rightly, focus on those who died. But what of the many who are injured, and whose lives will be transformed as a result of the events? What role should they play in the public investigation that follows?
In three conjoined judicial reviews concerning the legality of the Home Secretary’s exercise of her power under paragraph 9 of Schedule 10 of the Immigration Act 2016 to provide accommodation to those who are granted immigration bail, Mr Justice Johnson held in R (Humnyntskyi) v SSHD  EWHC 1912 (Admin) that each of the three claimants had been unlawfully denied such accommodation, and that the relevant policy was systemically unfair.
In a judgment handed down on 1 April 2020, the Supreme Court reversed the decisions of Nicola Davies J (as she then was) and a unanimous Court of Appeal, allowing the appeal on the ground that no vicarious liability can lie for the acts of an independent contractor: Barclays Bank plc v Various Claimants (‘Barclays’). This was one of a pair of decisions, each concerned with a limb of the vicarious liability test: the requisite relationship (Barclays) and the necessary connection between that relationship and the wrongdoing (WM Morrisons Supermarkets plc v Various Claimants (‘Morrisons’)). While much could be said, to use the language of recent case-law, about whether this latest development means that vicarious liability is still ‘on the move’ (Various Claimants v Child Catholic Welfare Society (‘Christian Brothers’)), has ‘come to a stop’ (Cox v Ministry of Justice (‘Cox’)), or has even been thrown into reverse, this post will instead focus on the judgment’s implications for the test(s) for employment or worker status across various contexts. Although Barclays may bring a certain kind of clarity, or at least predictability, to future vicarious liability cases, it nonetheless blurs boundaries in several areas of law. Three of these will be addressed below.
Race and Rights in the UK: Do Black Lives Matter Today?
The recent killing of George Floyd at the hands of US authorities has sparked a global outcry, with individuals and organisations demanding accountability and an end to the racial oppression that black Americans face. Within the United Kingdom, a much-needed debate is also taking root in response to these events, which focuses on systemic racism that denies people their basic rights here. From discriminatory policing, to the racism inherent in the Windrush and Grenfell scandals as well as the disparate racial impacts of COVID-19, evidence of systemic racial injustice within the UK abounds.
Drawing on the knowledge and experience of our panellists, this event hosted by the Human Rights Lawyers Association (HRLA) tomorrow, will provide a forum to discuss some of these issues and recommend solutions in order to advance this debate at this critical juncture. Presentations will touch on the following four key areas as part of this discussion and will be followed by a live Q&A:
Laurie-Anne Power, 25 Bedford Row (Chair) Judge Peter Herbert OBE, Co-Founder BMELawyers4Grenfell, Chair of the Black Lawyers’ Society Dr Nishi Chaturvedi, Professor of Clinical Epidemiology at University College London Martin Forde QC, One Crown Office Row, Independent Adviser to the Windrush Compensation Scheme Zainab Asunramu, Activist and Writer Rohan Samuel, @poet_rs Spoken Word Poet
Event lead and Introduction: Tetevi Davi, HRLA Executive Committee
Enables ministers to use regulation to add to the list of possible ‘victims’ of hate crime. There are already suggestions that misogyny will be added.
The definition of hate crime is extended to include ‘aggravation of offences by prejudice’.
Creates a new crime of ‘stirring up hatred’ against any of the groups which the Bill protects.
Updates and amalgamates existing hate crime law.
Abolishes the offence of blasphemy.
In addition, a new offence of misogynistic harassment is being considered.
The Bill was created following Lord Bracadale’s independent review of hate crime law. Official figures show that hate crime is on the rise in Scotland and the Bill seeks to address this.
However, the Bill has caused considerable concern. Many have suggested that the Bill unduly restricts freedom of speech. The President of the Law Society of Scotland, Amanda Millar, said she had “significant reservations” and indicated that “views expressed or even an actor’s performance” could result in a criminal conviction.
Groups ranging from the Catholic Church to the National Secular Society have also spoken against the plans. The Scottish Newspaper Society expressed reservations.
Some have claimed that JK Rowling, who recently tweeted her views about transgender rights/ feminism, could be imprisoned for 7 years under the Bill. Opponents also point to the experience of Threatening Behaviour at Football and Threatening Communications Act 2012, which sought to target football hooliganism. The Act was later repealed due to concerns about freedom of speech and its ineffectiveness.
James Kelly, Labour’s justice spokesman, has pointed out that the Bill would not require ‘intention’ in order for criminality to be found. He suggested that religious views could be negatively affected by the proposals.
In response, the Scottish government points out that the Bill makes clear that criticising religious beliefs or practices does not, in itself, constitute a criminal offence. Ministers have also emphasised that the draft legislation seeks to protect minorities and oppressed groups.
Ms Sturgess tragically died of Novichok poisoning, having inadvertently opened a discarded perfume bottle containing the nerve agent. Her death came some four months after the highly publicised poisoning of Sergei and Yulia Skripal in Salisbury.
The recent ruling by the Supreme Court that the former leader of Sinn Féin had been unlawfully detained and convicted in the 1970s has elicited some severe criticism from high places, including former Supreme Court judge Jonathan Sumption. Matt Hill of 1 Crown Office Row discusses this case with Rosalind English in the latest episode of Law Pod UK. Matt has worked on a number of cases relating to the Troubles in Northern Ireland. He was involved as an in historian on the Bloody Sunday Inquiry, was junior counsel to the Inquiry on the recent Birmingham pub bombing inquests, and has written about the use of inquiries and inquests in dealing with the legacy of the Troubles. The discussion focusses on the so-called “Carltona” principle regarding the responsibility of ministers to consider each function of administration. Lord Sumption has said that the Supreme Court ruling in the Adams case has “left the law in an awful mess”.
In Sutherland v Her Majesty’s Advocate, the Supreme Court ruled unanimously that it was compatible with the accused person’s rights under ECHR article 8 to use evidence obtained by “paedophile hunter” (“PH”) groups in a criminal trial.
PH groups impersonate children online to lure persons into making inappropriate or sexualised communications with them over the internet, and then provide the material generated by such contact to the police. Importantly, they operate without police authorisation.
Per Section 6(1) of the HRA, a prosecution authority – as a public authority – cannot lawfully act in a way that is incompatible with a Convention right. Consequently, there were two compatibility issues on appeal before the Supreme Court:
Were the appellant’s article 8 rights interfered with by the use of the communications provided by the PH group as evidence in his public prosecution?
To what extent is the state’s obligation to provide adequate protection for article 8 rights incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime?
This case involved the ancient tort of public nuisance. Such a claim is addressed to behaviour which inflicts damage, injury or inconvenience on all members of a class who come within the sphere or neighbourhood of its operation. As Linden J explained, a person may bring an action in their own name in respect of a public nuisance
when they have suffered some particular, foreseeable and substantial damage over and above what has been sustained by the public at large, or when the interference with the public right involves a violation of some private right of the claimant. A local authority may also institute civil proceedings in public nuisance in its own name pursuant to section 222 Local Government Act 1972: see Nottingham City Council v Zain  1 WLR 607.
The case heading (partial screenshot above) provides a pretty comprehensive list of activities that would come within the category of “public nuisance”. I recall John Spencer’s immortal words from his article in the Cambridge Law Review on the subject in 1989:
Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common scold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance.
So as you can see, this tort encompasses quite a range of human enterprises.
The future of the UK response to COVID-19 remains uncertain. Prime Minister Boris Johnson has hinted that things will be ‘significantly normal’ by Christmas, and has emphasised his reluctance to impose a second national lockdown, comparing such a threat to a ‘nuclear deterrent’. Yet the government’s chief scientific adviser Sir Patrick Vallance says there is a risk we will need another national lockdown in the winter months. Mr Johnson has said the advice on working from home will change on 1st August to ‘go back to work if you can’; Sir Patrick Vallance says there is ‘no reason’ to change that advice. Confusion continues to reign.
Access to justice has been a major casualty of the pandemic, with jury trials suspended and a steady backlog of cases building up in the courts. To address that backlog, the government is now opening 10 temporary ‘Nightingale Courts’, which will hear civil, family, tribunal, and non-custodial criminal cases. Chair of the Criminal Bar Association Caroline Goodwin QC says that these courts are ‘just a start’, and that further buildings and a renewed focus on criminal trails will be needed to clear the backlog. Justice Minister Robert Buckland has already warned that the backlog may not be cleared until 2021.
The Court of Appeal has granted Shamima Begum leave to enter the UK in order to pursue her appeal against the Home Office’s decision to remove her British citizenship, overruling part of the decision made by the Special Immigration Appeals Commission. The court’s ruling is discussed in more detail below, and in an article by Marina Wheeler QC.
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.