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The Supreme Court has ruled unanimously that the Scottish parliament does not have the power to pass legislation that would allow for a second referendum on Scottish independence. Such legislation, the Supreme Court found, would touch on ‘reserved matters’, that is, matters affecting the United Kingdom as a whole. The Scottish government unsuccessfully argued that a referendum would be advisory, and as it would not have immediate impact on the existence of the UK, would not touch on reserved matters. Sturgeon, while respecting the ruling, commented that it confirmed that the UK can no longer be pictured as a voluntary partnership and noted that the next general election could serve as a ‘de facto referendum’.
Nurses are preparing to strike for the first time on the 15th and 20th of December. The issues in question include low pay and unsafe staffing levels. The Royal College of Nursing (RCN) has reported that experienced nurses are 20% worse off in real terms than in 2010, due to many pay increases below the rate of inflation, and that 25,000 nursing staff have left the Nursing and Midwifery Council register since last year. If ministers continue to refuse to engage in formal negotiations with the RCN, the strikes will go ahead across England, Wales and Northern Ireland, and are expected to have a severe impact on care.
Salting the Bird’s Tail: a superstition that sprinkling salt on a bird’s tail will render it temporarily unable to fly, enabling its capture
Elon Musk’s takeover of Twitter has made headline news over the past few months. Attention firstly focused on whether it would happen at all. Once the acquisition was completed, public opinion turned to Musk’s plans for the platform: to make Twitter a bastion of free speech in opposition to an age of censorship. As these reforms have begun to unfold, news outlets have looked at the treatment of staff during this period of ‘transition’.
What is interesting, however, is that these episodes are not taking place in a contextual vacuum. At the same time that Musk brags that “the bird is freed”, the Online Safety Bill passes through Parliament with an aim to control information on social media platforms. The Bill sets out to regulate what Musk’s Twitter sets out to deregulate.
Does the Bill salt the bird’s tail, caging what has only just been freed? Where should the balance be struck between social media freedom and social media protection?
In R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410, the Court of Appeal robustly rejected a challenge to the earlier decision of the Divisional Court that Article 2 did not apply to drug related death of a voluntarily admitted psychiatric patient.
Photograph: Linda Nylind
The deceased had died in her own flat in July 2018 whilst under long-standing psychiatric care for schizophrenia. At the time she was a voluntary patient in a unit operated by the Central and North West London NHS Foundation Trust who had failed to return to the unit when expected She had a history of illicit drug taking but had been abstinent from drugs for many months before her death. She had failed to return to the unit when expected. As noted by the Lord Chief Justice (delivering the judgment of all the court) at [3] there was no basis for suggesting that she had taken her own life.
The 22 year old patient in this case, X, was unconscious in intensive care during the course of this hearing, following a serious stroke. There was virtually no prospect that he would recover. This urgent application by X’s parents, out of hours, before Poole J was for a declaration that it would be lawful for a doctor to retrieve X’s sperm for storage after his death. The applicants also sought an order that X’s father V could sign the relevant consents under the Human Fertilisation and Embryology Act 1990 (“The 1990 Act”). The applicants did not seek any orders in respect of the use of X’s sperm once collected and stored. That was for another day.
The Trust took a neutral position on whether the declaration and order sought were in X’s best interests.
In this first Judgment, the Court analysed powers granted by the Immigration Acts 1971 and 2016 and rejected the Defendant’s erroneous interpretation of the relevant statutory provisions. It then made consequential orders (also reported) including steps to publicise its ruling, given that over 400 phones, still held, could not be linked to any individual migrant.
A second Judgment (delivered on 14 October 2022) was recently published ([2022] EWHC 2729 (Admin)). This Judgment addresses the question “how did this happen?” How did the Defendant come to operate an unlawful policy and why was its existence initially denied, leading the Defendant to breach her duty of candour within the proceedings?
A historic deal has been agreed at the United Nation’s Cop27 summit which will provide funding to vulnerable countries to cope with the impact of climate change. The final cover document did not include commitments to reduce the use of fossil fuels. The deal also used new ambiguous language about “low emissions energy” which experts suggest could refer to fossil fuels including gas.
There has been an investigation following the appearance of sexual abuse victims’ personal details on the Suffolk Police website. Police and crime commissioner Tim Passmore issued an “unreserved apology” for the breach. The published information included victims’ names, addresses, dates of birth and details of the offences committed against them.
On Monday 14 November, the United Nations Human Rights Council released a report which including 302 recommendations demanding that the UK must tackle rising poverty. The report follows new figures revealing that four million children in households on universal credit face big cuts in income if benefits are not increased in line with inflation. Oxfam and the Healthcare Trade Unison, amongst other organisations, have said the UK is “failing to meet its international legal obligations”.
In other news:
The Refugee Council called on ministers to introduce a range of measures to deal with the record delays in processing asylum claims. Currently, government spending is at around £6.8million for housing migrants in hotels. It has also been revealed that at least forty child asylum seekers were placed in a Home Office hotel designated for adults; last month, one child was the victim of a serious stabbing.
The Advertising Standards Authority (ASA) has revised its guidance on age-restricted ads online. The new guidelines provide greater protection to children and young people by introducing content, media placement and audience targeting restrictions. The Committee of Advertising Practice (CAP) provided a principles-based checklists to help limit the exposure of young people and children to age-restricted ads. Advertisers have ultimate responsibility for ensuring compliance with the rules.
Analysts at the Internet Watch Foundation (IWF) revealed they found nearly nine-hundred instances of Category A child sexual abuse material in just five days. The research revealed children as young as seven are being coerced by abusers into filming themselves carrying out the most severe forms of child sexual abuse material. The data publication has been used to highlight the need for the delayed Online Safety Bill.
In the courts
In X, Re (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48, the Court of Protection dismissed an application by X’s parents, V and W, for a declaration that it would be lawful for a doctor to retrieve X’s gametes to be stored both before and after his death, and an order that V may sign the relevant consents in accordance with the provisions of sub-paragraph 1(2) of Schedule 3 to the Human Fertilisation and Embryology Act 1990 (“The 1990 Act”). Schedule 3 of the 1990 Act deals with the use or storage of gametes, as does Section 4(1) of the 1990 Act; both stress the importance of consent in order that this activity be effectively regulated. X was potentially to be assessed as brain dead within 24 hours of the hearing. Citing Parrillo v. Italy (Application no. 46470/11) the Court held that the ability to give consent in regards to gametes or embryos constitutes a facet of private life. The Court relied upon K v LBX and others[2012] EWCA Civ 79 in establishing that for an interference with X’s Article 8 rights to be lawful, it must be necessary and proportionate to achieve a legitimate aim. Having considered all the circumstances, and applying section 4 of the Mental Capacity Act 2005, the Court held that it would not be in X’s best interests to make the declarations sought. The Court was not persuaded that the significant interference with X’s Article 8 rights would be necessary or proportionate.
On 18 November, judgement was handed down in AG (A Child), Re [2022] EWCA Civ 1505. The Court dismissed an appeal against the decision of the Divisional Court to refuse to make a declaration of incompatibility between certain provisions of the Diplomatic Privileges Act 1964 (DPA) and the Vienna Convention on Diplomatic Relations 1961 (VCDR) with Article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The key issue in the appeal was whether the Divisional Court was right to decide that neither Article 3 nor ECtHR jurisprudence required the UK to breach the VCDR. The Appellant, AG, and her 5 siblings were subjected to abuse by both their parents. Their father was an accredited diplomat at the time and thus had immunity from the criminal, civil and administrative jurisdiction of the receiving state under DPA and the VCDR. Barnet, the London Borough where the family lived, tried to intervene on the children’s behalf, and supported AG in the appeal. The Appellant contended, referencing Z v United Kingdom (Application no. 29392/95), that Article 3 includes a systems duty on the state to take effective measures to prevent private acts of torture, inhuman or degrading treatment or punishment. The Court were unpersuaded by this. Relying upon Lord Reed’s judgement in R (AB) v Secretary of State for Justice[2022] AC 487, the Court held that they could not be confident that the ECtHR would regard the systems duty in Article 3 as overriding the long-established international law principles enshrined in the VCDR and it was not open to the court to declare Article 3 and the VCDR incompatible.
A woman living with Autistic Spectrum Disorder (“ASD”), absence epilepsy and learning difficulties succeeded in a claim for judicial review against the London Borough of Croydon after a deputy High Court judge ruled that the council had failed to meet her needs contrary to the requirements of the Care Act 2014. The claim in P, R (On the Application Of) v London Borough of Croydon[2022] EWHC 2886 (Admin) contended that the council’s decision to fund 35 hours per week of support was unlawful as it failed to meet her needs, and succeeded on three of four grounds.In relation to Ground 1, the Judge observed that it was arguably unlawful for the Defendant to have set a level of required care in an assessment, and then to have provided a Care and Support Plan making assumptions that the required care could be provided by her parents. Grounds 3 and 4 both concerned a failure to comply with The Care and Support Statutory Guidance. The Court held, referring to the standard of proof established in R (Cava Bien Ltd) v Milton Keynes Council[2021] EWHC 3003, that the Defendant’s apparent failure to asses the level of care which could and would be provided by the Claimant’s parents did make a substantial difference to the outcome of the Claimant’s care assessment. The Court ordered the quashing order of the Defendant’s February 2022 decision to provide or fund 35 hours of support per week, and the Defendant’s Care and Support Plan dated 14 February 2022. With reference to R (CP) v North East Lincolnshire Council[2019] EWCA Civ 1614, the Court maintained that it was not unconcerned with “historic” breaches and the Claimant was entitled to declaratory relief on this aspect of Ground 1.
World Cup opening ceremonies can be head-scratching affairs. Chicago, 1994, is perhaps as helpful an example as any. This was the setting for Diana Ross’s attempt to burst the net with a choreographed spot kick. She didn’t quite find the target – there ain’t no goal mouth wide enough – but it didn’t stop the mock woodwork from splitting theatrically into two halves as the goalkeeper dived redundantly to his right.
The High Court has granted an injunction preventing M25 protests in response to Just Stop Oil activists gluing themselves to motorways in the past weeks. The injunction means that anyone fixing themselves to the road, or anyone assisting someone else in doing so, can be held in contempt of court and thus face imprisonment, an unlimited fine, and the seizure of assets. The decision follows a previous court order obtained against Insulate Britain who partook in similar protests earlier in the year. The existing injunctions now cover the M25, the M25 feeder roads, and major roads in Kent and around the Port of Dover until May 2023.
The proposed bill to overhaul EU law, the Retained EU Law (Revocation and Reform) Bill, could have devastating impacts on legal certainty in the UK, the Law Society have warned. The measures would allow ministers to overhaul laws without appropriate parliamentary scrutiny or public oversight, raising concerns over parliamentary sovereignty, legal certainty, and the rule of law, according to Society president Lubna Shuja. A clause in the bill would mean that many retained EU laws will expire at the end of 2023, with them going many basic protections. The Society has called for this ‘arbitrary and unrealistic’ 2023 deadline to be removed in order to allow a more measured review of the laws and what reform is necessary.
In other news
A coroner has determined in a pre-inquest hearing that there was no evidence that Archie Battersbee partook in the TikTok blackout challenge. While Archie did access TikTok on the day of his tragic injuries, there was nothing to suggest his accident was connected to the trend in question. The finding was based on photographs and videos downloaded from his phone.
The UN Human Rights Council have reminded that the UK’s treatment of asylum seekers must comply with international law in their review of the human rights situation in the UK. The statement came alongside a call on the Government to give some certainty to asylum seekers by speeding up approvals instead of housing people in motels, stating the temporary accommodation they are kept in is ‘grim’. The examination was against the backdrop of plans to send migrants to Rwanda.
The Government have been accused of ‘rolling back’ on tackling modern slavery by the charity Anti-Slavery International. It is claimed that the UK has attempted to reclassify modern slavery as an immigration issue and that a rhetoric of ‘abusing the system’ diverts attention from the important issues. The charity says that the Rwanda scheme, for instance, fails to provide safeguards to prevent victims of modern slavery being targeted for relocation.
In the courts
In Commissioner of the Police of the Metropolis v A Police Conduct Panel [2022] EWHC 2857 (Admin), the High Court ordered that a new panel redetermine whether an officer’s behaviour amounted to gross misconduct in relation to the unauthorised use of firearms. The officer in question falsely stamped his personal firearms authorisation, meaning whenever a weapon was withdrawn by him, he used a false document authorising him to carry it. The Commissioner claimed judicial review of the panel assessing his conduct (who did not dismiss him) on 2 grounds: (i) the process by which his sanction was reached was unlawful; and (ii) the sanction awarded was irrational. Ground 1 was accepted on the basis that the Panel erred in law by considering testimonials when assessing the misconduct. Ground 2 was accepted on the basis that the only reasonable sanction was dismissal, whereas the panel only issued a written warning.
In Modi v Government of India [2022] EWHC 2829 (Admin), the High Court dismissed an appeal against a ruling ordering the Claimant to be extradited to India, who seek him for criminal proceedings. The appeal submitted that the extradition was oppressive within the meaning of s91 of the Extradition Act 2003 by virtue of his physical or mental condition. The court determined that while the risk of suicide is high, there are suitable medical provisions and an appropriate plan in place to mitigate this risk. The risk therefore did not cross the high threshold required to satisfy that the claimant’s condition is such that it would be oppressive to extradite him.
In AB v Chief Constable of British Transport Police [2022] EWHC 2749 (KB), the High Court dismissed an appeal against a judge’s declaration that the retention of records in relation to an incident involving the claimant was unlawful. The claimant has Asperger’s and experiences high levels of anxiety. Two women complained to the police that he had touched them inappropriately, but he was not charged with any offence. The police retain information about the complaints, which the claimant submits is unlawful on 2 grounds: (i) it is inaccurate, and the retention is therefore in breach of data protection; and (ii) it is a disproportionate interference with his Article 8 Convention rights. The appeal was dismissed for the fundamental reason that the records were intended to reflect the information provided to the police, rather than detailing the underlying facts of what happened.
Elsewhere on the UKHRB
Rosalind English discusses the HS2 protest injunction here.
A report has found that the newly introduced practice of GPS tagging migrants has left people feeling suicidal and stigmatised. Since August 2021, those on immigration bail facing deportation have been monitored by the State, but in January of this year the measures were increased to GPS tracking their every move. The report raises the following concerns: (i) it causes serious damage to mental and physical health; (ii) it is a form of surveillance that goes beyond what is necessary; and (iii) the tags must be charged for up to 4 hours per day and cannot be removed to do this. In the round, the report characterised the practice as ‘psychological torture’ and recommended that it be stopped.
Thousands of students have decided to bring legal claims against universities over their education during the Covid-19 pandemic. The claims complain that the tuition fees for education remained the same despite everything moving online, the result of which being that resources were vastly reduced. Some students paid £40,000 for the year despite lessons frequently being cancelled and timetables slashed. Part of the issue, according to one student at the University of Nottingham, was that students were not told when the period of online teaching would end, and so were forced to pay rent for no reason. No claim has been brought at present, but the calls have rallied nearly 20,000 students in support.
This case involved the application, and grant, of an interim injunction in the “unknown” as well as “known” protester context by Knowles J in the Birmingham District Registry.
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The first claimant was the company responsible for construction HS2, the high speed railway line between London and the North of England via the Midlands, part of which is already under construction. The second claimant was the company responsible for the successful delivery of the HS2 scheme.
A legislative scheme gave the company wide powers to acquire and take temporary possession of land for the purposes of construction and maintenance. This land covers the whole of the proposed HS2 route, and other land providing access.
Both claimants applied for an interim injunction to restrain trespass and nuisance by a large number of defendants who were opposed to the construction of HS2. Some of these defendants were named, most unnamed.
The storm raging around small boats arriving on the south coast has been brewing for some time. In early summer the focus was a policy to send arrivals to Rwanda. Intervention by the European Court of Human Rights effectively suspended flights while a domestic ruling on the policy’s legality is awaited. Meanwhile, in Dover a migrant processing centre has been firebombed, another is dangerously overcrowded, and the new Home Secretary raises tensions by speaking of an “invasion”.
Amidst this swirl is an eye-catching Divisional Court Decision about a secret and unlawful Home Office policy to seize and download data from the mobile phones of all those arriving in small boats. The substantive Judgment in R (HM, MA and KH) v Secretary of State for the Home Department [2022] EWHC 695 (Admin) was delivered on 25 March 2022, followed by an Order distilling the Court’s conclusions on 18 October 2022.
The Law Commission has recently brought out its consultation paper on these new forms of assets, and how they might be aligned with the ancient law on property. In Episode 171 of Law Pod UK Rosalind English talks to Robert Kellar KC about the challenges this novel arrangement of ownership presents to English property law. What do we mean, exactly, when we talk about the idea of digital assets?
We’re all very used to the idea of electronic money: for decades, money has been represented electronically on in our bank accounts. But the the Law Commission’s paper deals with quite different issues, when it comes to digital assets.
The consultation paper is at pains to stress that property law must encompass these new forms of ownership. As Robert points out in this episode, property rights are useful because they can be enforced against the whole world, whereas other legal rights can be enforced only against someone who has assumed a relevant duty in contract or tort.
Furthermore, the concept of property is widely used in statutes and case law, assuming a central role in proceedings concerning bankruptcy or insolvency, tortious or criminal interference with property, and death and succession.
The Law Commission’s conclusion thus far is that digital assets should be treated as a new category of property.
Listen to the episode and follow @LawPod_UK on Twitter if you have any feedback, ideas and comments for the team. Alternatively, read more about this topic on our blog here.
Dominic Raab has returned to the role of Secretary of State for Justice and Lord Chancellor. Brandon Lewis stepped down from the role after 50 days in office; he recently engraved his name on the foundation stone at London’s Justice Quarter, where construction of a ‘super court’ began last week.
On 25 October, Safeguarding Minister Mims Davis announced new provisions, collectively known as ‘Kay’s Law’, to better protect victims of crimes such as domestic abuse and sexual assault. The reforms, coming into force this week, include imposing a duty upon the police force to take into account the views of victims before releasing someone on bail, and encouraging the use of pre-charge bail when necessary and proportionate. These reforms coincide with further measures to support victims, including the ‘ENOUGH’ campaign. The campaign provides information on support services, safe ways to intervene if someone witnesses an incident of violence against women and girls, and offers guidance for individuals worried about their own behaviour.
The ruling has been released in the deportation case of two members of the Rochdale grooming gang. Adil Khan, 51, and Qari Abdul Rauf, 52, lost their appeal against deportation after a seven-year legal battle following their convictions of child sex offences in May 2012. Although the appeal was heard at an immigration tribunal in June, with a decision made in August, judges have only just released their legal ruling. The challenge against deportation on human rights grounds failed; in both individuals’ cases there was a “very strong public interest” in them being removed from the UK.
Lawyers representing TFL have requested permission from the High Court to take legal action against a further 121 named people following the intensification of Just Stop Oil protests. Earlier this month Mrs Justice Yip granted an injunction against 62 named “defendants” and against “persons unknown”, also making an order that the Metropolitan Police should “disclose” to TFL the names and address of individuals arrested as a result of the protests.
In other news
A report, from the Minderoo Centre for Technology and Democracy, at the University of Cambridge, has stated that live facial recognition technology (LFR) should be banned from use in streets, airports and any public spaces. The study examined three deployments of LFR, one by the Metropolitan police and two by South Wales police; it found that all three failed “to meet ethical and legal standards”.
The Law Society has found that, at the current rate of progress, it will take more than 125 years before there is proper representation within the England and Wales judiciary. Black judges make up just 1.09% of the judiciary, compared with 1.02% in 2014, and it would take until 2149 for their representation to match current estimates for the general population (3.5%). For female representation to be achieved, it is expected to be at least another decade, and for people of Asian ethnicity, that stage in anticipated to be reached by 2033.
For the first time, the information commissioner has issued a blanket warning on the ineffectiveness of ‘emotional analysis’ technologies. The attempted development of ’emotional AI’ is one of four issues that the ICO has identified in a study of the future of biometric technologies. The “pseudoscientific” nature of the field makes it untrustworthy, especially in instances of gathering information related to important decision making.
In the courts
On 21 October the Court of Appeal handed down judgement in Rowe v London Borough of Haringey[2022] EWCA Civ 1370. The case concerned HHJ Roberts’ order dismissing the Appellant’s appeal against the London Borough of Haringey’s review decision dated 23 June 2021. The decision stated that the Appellant was not statutorily overcrowded under the requirements of Part X Housing Act 1985 (HA 85) and it was reasonable for her to remain in her accommodation. The dispute arose as to whether Part X HA 85 applied to the house as a whole, as the Appellant contended, or the Appellant’s room, as the Respondent contended. In post-hearing submissions, the Respondent contended whether Part X HA 85 applied at all, arguing instead that the relevant measure was that in Part 2 Housing Act 2004. The Court declined to decide on this issue, instead proceeding on the original submissions that Part X HA 85 applied. The Court held the property was not a ‘separate dwelling’ for the purposes of s.325 and s.326 HA 1985 and that no breach of overcrowding had occurred. Ground 2 of the appeal, assessing reasonableness of occupation was predicated on Ground 1, which had been dismissed. The Court held that the Respondent’s withdrawal of its original decision, via a letter dated 12 May 2022, due to their mistake in not assessing the property’s status as an unlicensed HMO did not render the claim as academic.
On 26 October, the High Court handed down judgement in Three Counties Agricultural Society v Persons Unknown & Ors[2022] EWHC 2708 (KB). The case involved an application for a precautionary injunction against ‘Persons Unknown’ by the Claimant, in an effort to curb protest activity at the Three Counties Defence and Security Exposition. The Court stated that the starting point for the grant of an injunction was s 37(1) of the Senior Courts Act 1981. In this instance European Convention rights were engaged, therefore the correct test to apply was the more stringent one laid down in Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100. The Court held that the injunction to prevent trespass upon the Claimant’s land was appropriate and necessary. In respect of the part of the Order relating to activity on the highway, the Court stated it must strike a balance between the rights of the protestors and the rights of the Claimant to access and egress its land. The Court held that granting the injunction would not unlawfully interfere with Article 10 and 11 rights of the protestors, and that any interference presented by the injunction was proportionate.
Rishi Sunak has formally been appointed the new UK prime minister, following Lizz Truss’ resignation on Thursday 20 October 2022. He is the youngest prime minister for more than 200 years and the first British-Asian prime minister.
A report by Baroness Casey has revealed that claims against Met Police officers of sexual misconduct, misogyny, racism and homophobia have been badly mishandled. According to the report, 1,809 officers – or 20% of all those facing allegations – had more than one complaint raised against them: less than 1% of officers facing multiple allegations had been dismissed from the force. Met Police Commissioner Sir Mark Rowley says he is ‘appalled’ at the findings and the situation ‘cannot continue’.
The University of Manchester has released a report which finds the judiciary in England and Wales to be ‘institutionally racist’. In a survey of almost 400 lawyers and judges, 95% said that racial bias played some role in outcomes in court and 29% said it played a ‘fundamental role’. The study also showed that judicial discrimination to be directed particularly towards black court users – from lawyers to witnesses to defendants. Since 2020, however, there has been only one published Judicial Conduct Investigations Office decision in which racism was found against a judge.
In this guest post, Dr Ilaria Bertini, Research Fellow at Bios Centre, examines the recent decision of a Chamber of the Third Section of the European Court of Human Rights in Mortier v. Belgium, which examined Belgian law relating to euthanasia.
Introduction
The European Court of Human Rights recently delivered a landmark judgment, Mortier v. Belgium (78017/17), on a case of euthanasia.
The case concerns an adult Belgian citizen who underwent a euthanasia procedure at a time when she was suffering from severe depression, without her son or daughter being properly informed. Hence her son, Tom Mortier, claimed that the government failed to protect both her right to life (art. 2 ECHR) and her right to respect for private and family life (art. 8 ECHR).
According to the Belgian Act on Euthanasia (28th May 2002) it is legal for a physician to perform euthanasia if the following three criteria are met: the patient is legally competent and conscious at the time of the request, the request is made autonomously without external pressure, and the patient is suffering from a “medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident.” An independent second opinion might be needed to assess the patient’s willingness to die. Once the euthanasia is approved, there is a cooling off period of one month before the act takes place. Afterwards a Commission of 16 persons seeks to check all the reports to make sure that the procedure has complied with the law.
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