Strasbourg Court rules against UK on police retention of data

26 February 2020 by Alex Ewing

Can the police indefinitely retain an individual’s DNA profile, fingerprints and photograph after they have been convicted?

That was the question before the European Court of Human Rights (ECtHR) in Gaughran v UK (no. 45245/15, ECHR 2020). This judgment — which was given for the applicant — is of interest both on the merits and as an example of the way the Court continues to approach issues of this kind.

The Use of Live Facial Recognition Technology in Scotland: A New North-South Divide?

25 February 2020 by Euan Lynch

Earlier this month, the Scottish Parliament’s Justice Sub-Committee on Policing published a report which concluded that live facial recognition technology is currently “not fit” for use by Police Scotland. 

Police Scotland had initially planned to introduce live facial recognition technology (“the technology”) in 2026. However, this has now been called into question as a result of the report’s findings – that the technology is extremely inaccurate, discriminatory, and ineffective. Not only that, but it also noted that the technology would be a “radical departure” from Police Scotland’s fundamental principle of policing by consent.  

In light of the above, the Sub-Committee concluded that there would be “no justifiable basis” for Police Scotland to invest in the technology.  

Police Scotland agreed – at least for the time being – and confirmed in the report that they will not introduce the technology at this time. Instead, they will engage in a wider debate with various stakeholders to ensure that the necessary safeguards are in place before introducing it. The Sub-Committee believed that such a debate was essential in order to assess the necessity and accuracy of the technology, as well as the potential impact it could have on people and communities. 

The report is undoubtedly significant as it reaffirms that the current state of the technology is ineffective. It therefore strengthens the argument that we should have a much wider debate about the technology before we ever introduce it onto our streets. This is important not only on a practical level but also from a human rights perspective, especially set against the backdrop of the technology’s controversial use elsewhere.  

Law Pod UK latest episode: Coercive and Controlling Behaviour

24 February 2020 by Rosalind English

According to Jewish religious law, if a husband refuses to grant his wife a divorce (a “get”) she has no recourse to the Jewish authorities for a certificate and must either be content with a civil divorce, or remain a “chained woman” or “argunot”. One of the consequences of this system is that any child she may have by a subsequent relationship is considered a “manner”, or illegitimate.

For the first time in legal history Anthony Metzer QC of Goldsmith’s Chambers has used the secular criminal law to persuade a recalcitrant husband to grant his client a “get”, the threat of a prosecution for the offence of coercive and controlling behaviour leading to a maximum prison sentence of five years. This is a fascinating breakthrough and has implications not only for other “chained women” in Jewish communities but in the wider world of religious traditions where women are often the victim of unfair religious laws.

Rosalind English discusses the implications of this case with Mr Metzer QC in this week’s episode (No. 103) of Law Pod UK. You may want to refresh your memories on the use of the offence of criminal and coercive behaviour in proceedings in the family courts by listening to Rosalind’s interview with Clare Ciborowska of 1 Crown Office Row in Episode 43.

Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts.

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The importance of patents in biotechnology – John Butcher

21 February 2020 by Guest Contributor

The following article comes from a student of IP law at Georgetown University in Washington DC. Although somewhat outside the range of subjects usually covered by UKHRB I feel it is sufficiently important to keep up to date with this difficult and fast moving area, as law tries to keep pace with technological developments in this field. So here we have John Butcher’s survey of the field.

Inventors come from many different disciplines and fields of study. Arguably one of the most important are biotechnicians whose inventions dramatically help to improve our standards of living. From healing the body of diseases to restoring the environment, biotechnology pervades all aspects of life. 

While that sounds really nice, you might be wondering what exactly falls under biotechnology?

What is Biotechnology?

Biotechnology in the United Kingdom is the industry of organisms that manufacture commercial products. Interestingly, it can be quite controversial at times i.e. stem cells and gene cloning. Despite this, biotechnology is integral to advancements in the healthcare and pharmaceutical industry. 

Currently, most industrial biotechnological expenditure in the UK is in the field of healthcare. Consequently, the UK is the leader in Europe in the development of biopharmaceuticals – by quite a lead.

Twitter, trans rights and the role of the police — an extended look

21 February 2020 by Alice Irving

The case of R (Miller) v The College of Policing & The Chief Constable of Humberside [2020] EWHC 225 (Admin) is yet another decision arising out of an individual’s use of Twitter to share transphobic, or as they see it “gender critical”, views.

But it would be too narrow to characterise the case as being about trans rights only. At its core, it concerns the role of the police in responding to reports of hate incidents which do not amount to criminal behaviour. As such, the findings of Julian Knowles J have implications that extend beyond trans rights, impacting on how police should respond to reports of racism, antisemitism, Islamophobia, and other forms of discrimination that fall short of criminality. Clearly, the case raises extremely important questions. The Claimant already has permission to appeal to the Court of Appeal and a leapfrog certificate, allowing him to go directly to the Supreme Court to ask for permission to appeal there.

Vice-President of the Strasbourg Court Robert Spano’s response to Jonathan Sumption’s Reith Lectures

20 February 2020 by Rosalind English

Tonight, in the Old Hall, Lincoln’s Inn, Judge Robert Spano will deliver the inaugural Bonavero Institute Human Rights Lecture entitled “The Democratic Virtues of Human Rights Law” in which he responds to Lord Sumption’s Reith Lectures on the BBC last year. Jonathon Sumption will be there himself to respond to Robert Spano’s observations. The event, which is moderated by Helen Mountfield QC, principal of Mansfield College, Oxford, will be recorded and filmed, and the director of the Bonavero Institute Catherine O’Regan (whom I interviewed in Episode 97 on Law Pod UK has kindly given permission for the audio recording to be republished on Law Pod UK in due course.

So, here is Robert Spano in his own words.

• At the outset let me say this, I bring an external perspective, I will not be commenting on domestic political issues or developments in the British legal system. For that I am not equipped. Rather, I will begin by focussing in general on Lord Sumption’s views on the expanding role of law at the expense of politics before engaging with his third lecture, entitled ‘Human Rights and Wrongs’, and his criticism of the European Court of Human Rights. I proceed in this manner as it is difficult to disentangle the third lecture from Lord Sumption’s overall thesis. The five lectures must in other words fairly be read as a whole. When referring to his lectures, I will use the language Lord Sumption deploys in his published volume entitled Trials of the State – Law and the Decline of Politics (Profile Books, London (2019). In my intervention, I offer my personal views which should not be ascribed to the Court on which I serve.

Canis Lupus in agro hominis

20 February 2020 by Rosalind English

If your domestic mutt makes friends with a wolf, and is prepared to eat and play with this visitor from the wild in your garden, does that deprive said wolf of the protection of the EU rules on the protection of listed species? AG Kokott at the European Court of Justice has just handed down her opinion on this tricky question of conservation referred to the Court.

Background law

The Habitats Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora calls for the introduction of a system of strict protection for species, such as the wolf (Canis lupus), which are listed in Annex IV(a) thereto. However, must that system of protection also be applied in the case where a wolf plays with dogs in a village? That is the question that has been put to the Court in these proceedings. As the AG continues

Even in its specific form, that question may be of greater practical importance than one might think.  The answer to it will be decisive above all, however, in determining whether the substantively extensive protection of species provided for in the Habitats Directive is primarily relevant to natural and semi-natural areas, that is to say, in particular, to activities such as agriculture, forestry and hunting, or whether it is to be taken into account without restriction in all human activities, such as the operation of roads.

You only have to think about this for a few seconds before realising the far reaching implications of the latter interpretation.

Failure to protect women from domestic violence is a breach of Article 3 of the Convention – Elliot Gold

19 February 2020 by Guest Contributor

The European Court of Human Rights continues to make it clear that a failure by member states to protect people from domestic violence is likely to cross the high hurdle of the prohibition on degrading and inhumane treatment under Article 3.” It isn’t all about women. In the latest decision, Affaire Buturuga v Romania (App No. 56867/15), (available only in French) the Court found a breach of articles 3 and 8 in respect of a failure to investigate adequately and/or take action on complaints of domestic violence and awarded €10,000 general damages.   

Round Up 17.02.20 – Detentions, quarantines, deportations and reshuffles….

17 February 2020 by Thomas Hayes

Demonstrators protest government deportation flights outside Downing Street. Credit: The Guardian.

The last week provided no shortage of legal controversy, and posed the author of this blog considerable difficulty when trying to identify which developments deserved the most prominence. In analysing this avalanche of legal news, however, certain key themes started to develop.

Continue reading →

Removal of life support after brain stem death held lawful

14 February 2020 by Shaheen Rahman

Manchester University NHS Foundation Trust v (1) Midrar Namiq (2) Karwan Mohammed Ali (3) Shokan Namiq  [2020] EWHC 180 (Fam); [2020] EWHC 181 (Fam).

In two related judgments, Lieven J considered an application made by a Hospital Trust to withdraw treatment from a child receiving mechanical ventilation to keep him alive and an application for anonymity on behalf of his treating clinicians.  The Trust succeeded in both. The decision has been upheld by the Court of Appeal.

The application to withdraw treatment was opposed by the parents.  As always in such cases the circumstances were tragic and emotions ran high, which provides some context to the anonymity application. 

Adjacent flats: a new installation for Tate Modern?

13 February 2020 by Rosalind English

Fearne and others v Tate Gallery  [2020] EWCA Civ 104, on appeal from: [2019] EWHC 246 (Ch)

The Court of Appeal has just dismissed the actions in nuisance by residents of flats adjacent to the the Tate Modern art gallery on the south bank of the River Thames in central London. (Disclaimer: the author of this post has just moved into an apartment in the area but has no association with the flats or the residents central to this appeal.)

At the outset of this judgment, the Court observed that

the case, and this appeal, raise important issues about the application of the common law cause of action for private nuisance to overlooking from one property to another and the consequent invasion of privacy of those occupying the overlooked property.

The following discussion quotes from the Court’s own press report. References to paragraph numbers are in bold.

Corona-vires: Has the Government exceeded its powers?

13 February 2020 by Jim Duffy

This Government’s key message has been its ability get things done, whether it be Brexit, HS2 or stopping the spread of Coronavirus.

Indeed, if the new high speed trains move as swiftly as the Health Secretary did on Monday, then they might break the sound barrier: the Health Protection (Coronavirus) Regulations 2020 were enacted at 6.50am on Monday and laid before Parliament by 2.30 that afternoon.  Their preamble states that

the Secretary of State is of the opinion that, by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament.

One can appreciate the desire to bypass the cumbersome mechanics of Parliament to save the country from a potentially deadly virus. But in the fullness of time, the resulting Regulations might well be held up as an excellent advertisement for Parliamentary scrutiny.

Sexual abuse: a third party’s fault?

13 February 2020 by Charlotte Gilmartin

On 30 January 2020, Mr Justice Chamberlain gave judgment in BXB v (1) Watch Tower and Bible Tract Society of Pennsylvania (2) Trustees of the Barry Congregation of Jehovah’s Witnesses [2020] EWHC 156 (QB), making an important contribution to the law of vicarious liability.

Human Rights in the Supreme Court in 2020 – Lewis Graham

12 February 2020 by Guest Contributor

It is undeniable that the Human Rights Act has had a significant impact on the work of the Supreme Court. Just under a quarter (14 of 61) of cases decided during the Court’s 2018-19 term featured a determination on at least one issue relating to the Act or the European Convention on Human Rights. The UK Supreme Court is soon to begin Hilary Term 2020, and whilst the docket of cases it is set to hear this term seems to largely steer clear of controversial human rights issues we can nonetheless be confident that 2020 will feature its usual share of big human rights cases. What follows is a short preview of some of the more interesting and controversial of those cases, all of which the Court is due to hand down at some point this year. 

1. Article 3 and deportation

In the case of AM (Zimbabwe) v Secretary of State for the Home Department (on appeal from the Court of Appeal) the Court will have an opportunity to re-assess its approach to how Article 3 should apply in deportation cases.

It is well established that, under Article 3 ECHR, the United Kingdom cannot deport an individual to a country where, there is a “real risk” of them being subjected to torture, inhuman or degrading treatment. This has been extended to include situations where the deportee would be placed in circumstances which might occasion a significant deterioration of health, including where they lack access to life-saving treatment. 

The question in this case is whether Article 3 prohibits deportation in AM’s situation. He is an HIV-positive individual, whose condition for many years was being managed by anti-retroviral drugs in the UK. If deported to Zimbabwe, he would be very unlikely to have access to the same treatment. Although some medical options would be available to him, they would likely be significantly less effective for the management of his condition. 

Previous authorities had restricted the application of Article 3 to ‘deathbed’ cases only, where the deportee would likely die quickly following their removal from the country.

Did MI5 break the law? The Round Up

10 February 2020 by Conor Monighan

The Government has announced that it will introduce emergency legislation to prevent terrorists from being automatically released after they have served half their sentence. Under the proposals, the parole board would have to authorise offenders’ release from prison. Individuals will need to have served two thirds of their sentence before being eligible.

The changes come after a knife attack in Streatham, London, in which a number of people were stabbed. The police and parole board were not able to prevent the automatic release of Sudesh Amman, the perpetrator of the attack.