The Weekly Round-Up: Police Taser use, GDPR and the basic right to protest

31 August 2021 by

In the news:

The independent police watchdog has published a report this week claiming Black people and those with mental health problems are more likely to be subject to prolonged Taser use. The report from the Independent Office for Police Conduct reviewed some of the most serious cases of Taser use in the last five years, including 16 deaths. The report suggested that 60% of Taser incidents against Black people lasted for longer than 5 seconds, more than double the 29% of white people subjected to a similar length. The report made 17 recommendations, including a new system of police training on the use of the weapons. Following the report, families of victims killed by the use of a Taser have argued that the police should be banned from using them where it is clear the subject is suffering from a mental health crisis, and suggested that many of the cases of Taser deaths (some of which were sent to the Crown Prosecution Service but never reached court) should be reinvestigated. However, the police rebutted the report’s findings, asserting that they were ‘vague’ and misrepresentative, given that the report looked at only 0.1% of Taser use between 2015-2020, and focused on serious cases which had already been investigated by the Commission. This issue is becoming ever more relevant as a greater number of police officers are issued with Tasers each year.

In other news:


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Safeguards for suspects and accused persons in criminal proceedings in the EU – Jodie Blackstock

24 August 2021 by

The UK’s exit from the European Union raises many questions for continuing cross-border arrangements and the legal proceedings that follow. This is no less the case in the area of police and judicial cooperation. The Trade and Cooperation Agreement (TCA) has governed all arrangements since January 2021. Since people accused of crime will continue to travel, what does this mean for an individual’s ability to challenge requests from EU member states to UK authorities? These arguments are well known in the UK: how can we return people to Poland for prosecution of such minor misdemeanours as dessert theft? Should we be returning people to Lithuania given the appalling prison conditions?

Part 3 TCA introduced a new “surrender” arrangement with the EU to replace the European Arrest Warrant (EAW). It also replaced the other measures that in 2014 the UK concluded were necessary for law enforcement when it exercised the Protocol 36 to the Lisbon Treaty option to depart from police and judicial cooperation in criminal matters, and then opted back into 35. Alongside the EAW, these included the European investigation order, supervision order, instrument on transfer of prisoners and various others. These measures resulted from the mutual recognition project that sought to make law enforcement speedier and more effective. Part 3 TCA now provides for cooperation with Europol and Eurojust, operational information exchange and mutual assistance. 


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The Weekly Round-Up: Afghanistan, disability equality, and unregulated accommodation

23 August 2021 by

In the news:

On 15 August the Taliban took control of Kabul, following the collapse of the Afghan government and its President Ashraf Ghani fleeing the country.  In a news conference, a Taliban spokesman said women would be allowed to work and have rights “within the framework of Islam”.  The Taliban also said it wanted women to join its government, but precise laws are as yet undefined and there have been reports of women in some areas being removed from their workplaces and told their jobs will go to men.  Since the takeover, however, female presenters have returned to some television channels and “most, though not all, girls’ schools have remained open or are reopening”.

The fall of Kabul came after weeks of rapidly growing Taliban control across the nation, which followed a US-Taliban peace deal in April committing to US and NATO allies, including the UK, fully withdrawing from Afghanistan by 11 September.  On 13 August the UK government announced plans to evacuate British Nationals and former British staff eligible for relocation under the Afghan Relocation and Assistance Policy (ARAP).  ARAP came into effect on 1 April 2021 as a programme to relocate “current and former local staff in Afghanistan, including interpreters and their immediate families.”  Home Secretary Priti Patel said she was “proud to say that the UK is fulfilling its promise to those Afghan interpreters and other locally employed staff”, and that it was “our moral obligation to recognise the risks they have faced…”  Defence Secretary Ben Wallace confirmed the government would do its best to evacuate all people eligible but admitted with clear regret that “some people won’t get back”.

For those that that do make it out, their futures are far from certain as the Home Office is reportedly struggling to provide suitable accommodation for refugees.  On 18 August a 5-year-old Afghan boy fell from a hotel window, less than a fortnight after arriving in the UK with his family under the ARAP programme. There had reportedly been some concerns about the safety of the hotel windows and the housing group Mears had left the hotel some months ago due to safety concerns.


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Challenge to Criminal Injuries Compensation Scheme dismissed by Supreme Court

16 August 2021 by

Inside the Supreme Court

A and B v Criminal Injuries Compensation Authority and another [2021] UKSC 27

On appeal from [2018] EWCA Civ 1534

The claimants in the case were victims of human trafficking with unspent convictions in Lithuania. The Criminal Injuries Compensation Scheme (CICS) provides compensation to victims of crime, apart from where they have unspent criminal convictions (“the exclusionary rule”). The question for the Supreme Court was whether the exclusionary rule breached the claimants’ rights under Articles 4 and 14 of the European Convention on Human Rights. The Court found that the rule did not breach these rights.

Factual background

The CICS is a statutory scheme established by the Secretary of State for Justice which permits compensation to be given to a person “if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence”. But this is subject to the exclusionary rule for a person with an unspent conviction for an offence with a custodial sentence.

The appellants, A and B, were Lithuanian nationals and twin brothers. They were convicted of burglary and theft respectively in 2010 and 2011. They were then trafficked to the United Kingdom in 2013, where they were abused and subjected to labour exploitation. The traffickers were convicted for these criminal offences in January 2016.

On 16 June 2016, the appellants applied for compensation under the CICS. A’s conviction for burglary only became spent in June 2020, while B’s conviction for theft became spent on 11 November 2016. Because at the time of their application to the CICS they both had unspent convictions, they were disqualified from receiving compensation. They brought a claim for judicial review against the Criminal Injuries Compensation Authority (CICA) and the Secretary of State for Justice.


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Poland’s disciplinary chamber for judges threatens rule of law – ECJ

10 August 2021 by

I have posted on the extraordinary goings-on in Thuringen, Germany where two Weimar judges, one family and one administrative, have been subject to searches by the public prosecutor’s office following their respective rulings containing comments critical of the various lockdown and testing measures during the C-19 pandemic. You can find my posts here, here and here.

So it’s something of an irony that, whilst a leading member state of the European Union is going after its judges for rulings of which it disapproves, the European Commission lodges an application for interim measures under Article 279 TFEU and Article 160(2) of the Rules of Procedure, requesting that the European Court of Justice order the Republic of Poland to suspend various Polish laws concerning disciplinary cases against judges. As the ECJ said, when considering the request,

The European Union is composed of States which have freely and voluntarily committed themselves to the common values referred to in Article 2 TEU, which respect those values and which undertake to promote them. In particular, it follows from Article 2 TEU that the European Union is founded on values, such as the rule of law, which are common to the Member States in a society in which, inter alia, justice prevails.

Fine words, indeed. But the aspiration needs some enforcement. On the 15th of July the European Court of Justice (ECJ) ruled that the moves by the Polish government to institute a “Disciplinary Chamber of the Supreme Court” interfered with the guarantees of impartiality and independence of the judiciary, as well as the protection of the judiciary from executive disciplinary action, was in breach of EU law (Case C‑791/19, action for failure to fulfil obligations under Article 258 TFEU).


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Dental Negligence, Vicarious Liability and Non-Delegable Duty: A Test Case

6 August 2021 by

In Hughes v Rattan [2021] EWHC 2032 (QB), the High Court was asked to answer the following question. Was the owner of a dental practice liable for the dental negligence of a self-employed dentist engaged to work in the practice? The claim arose from NHS care provided by three different associate dentists.  The preliminary issue was whether the practice owner was liable by reason of: a) a non-delegable duty of care; or b) vicarious liability. The Court answered: “yes” and “yes”.

Non-Delegable Duty of Care

The Judge analysed the issue of non-delegable duty by reference to the principles affirmed by Lord Sumption in Woodland v. Swimming Teachers Association and others [2013] UKSC 66

(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is a characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

(3) The claimant has no control over how the defendant chooses to preform those obligations i.e. whether personally or through employees or through third parties.

(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.


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Authorising unregistered care and deprivation of liberty — Martin Downs

5 August 2021 by

Inside the Supreme Court

Legislatures in London and Cardiff have long ago established the most detailed safeguards and systems of registration to protect young people placed in children’s homes – most especially where that involves depriving them of their liberty. At the same time, the administrations in both capitals have presided over a situation whereby there is a significant shortage of such registered accommodation. This has tended to provoke expressions of outrage by the Judiciary.

One of these problem cases has reached the Supreme Court (T (A Child), Re [2021] UKSC 35). In his Judgment, Lord Stephens referred to the

enduring well-known scandal of the disgraceful and utterly shaming lack of proper provision for children who require approved secure accommodation. These unfortunate children, who have been traumatised in so many ways, are frequently a major risk to themselves and to others. Those risks are of the gravest kind, and include risks to life, risks of grievous injuries, or risks of very serious damage to property. This scandalous lack of provision leads to applications to the court under its inherent jurisdiction to authorise the deprivation of a child’s liberty in a children’s home which has not been registered, there being no other available or suitable accommodation.

The case of Re T itself is curious in that the Appellants (acting on behalf of the young person who was the subject of a High Court authorisation under the inherent jurisdiction) appear to have pursued an appeal on arguments that were not live at the relevant points below. Nevertheless, the Supreme Court was prepared to entertain argument as to whether it is a permissible exercise of the High Court’s inherent jurisdiction to authorise a local authority to deprive a child of his or her liberty despite the restrictions placed on such applications in the Children Act 1989 and the fact that that the Act created a detailed scheme for secure accommodation orders in Section 25.

How startling the problem is can be gleaned from the fact that the Supreme Court concluded that the inherent jurisdiction could be used to approve the placement of a young person in an unregistered children’s home – despite the fact that those who are running the home may be committing a criminal offence (contrary to section 11 of the Care Standards Act 2000). The Court concluded that this did not relieve the Court from taking the positive operational step of placing a child in such a placement in order to discharge its positive duties under Article 2 & 3 where “there is absolutely no alternative” (a quote that may lead to future difficulties of its own – as with the similarly telling phrase by Baroness Hale, “nothing else will do” in the field of non-consensual adoption).


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Compulsory Vaccination for Care Home Workers – legislation coming into force in November

3 August 2021 by

The government has passed legislation compelling care homes to ensure almost all workers are vaccinated against Covid-19. It comes into force on 11 November 2021, and applies to England only.

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 state that a care home provider must ensure that nobody enters care homes unless they fall into one of the identified exceptions.

The main ones are:-care home residents, friends and relatives of care home residents, emergency help providers (eg ambulance, emergency plumber) and children under 18.

If someone does not fall into one of the identified categories, the care home must not allow them entry unless they provide evidence that:- 

they have completed a course of an approved Covid vaccine;
or, for clinical reasons they cannot be vaccinated.

Some points to note: only those who cannot be vaccinated for clinical reasons are exempt. Religious and philosophical beliefs do not suffice. As well as workers, the Regulations ban a large variety of tradespeople who might need to visit a care home.

There is a 16 week period before the Regulations come into force; this is to allow care homes to encourage its workers to get vaccinated, warn of the consequences if they do not, and arrange alternative staffing to replace those who refuse. Compulsory vaccination is one of the three topics.

There will be a Zoom presentation on 6 September 2021 by Daniel Barnett of During it, you will learn:

– the seven common objections staff have to vaccination, and how to overcome them,
– whether dismissal for refusal to vaccinate because of health concerns is discriminatory
– whether dismissal for refusal to vaccinate because of pregnancy or breastfeeding is discrimination
– whether dismissal for refusal to vaccinate because of a anti-vax, or ethical vegan, or similar philopsophical belief is discrimination
– whether employers can compel existing employees and job applicants to tell you if they’ve been vaccinated
– the nine ‘reasonable’ steps for all employers under the Management of Health & Safety at Work Regulations 1999
– more about compulsory vaccination at care homes, and the steps care homes need to take to ensure any dismissals are fair

We have reposted this report with the kind permission of its author, Daniel Barnett. Daniel is an employment law barrister at Outer Temple Chambers in London, a presenter on LBC Radio, and a leading speaker on the national and international lecture circuit.

Regulating content on user-to user and search service providers

2 August 2021 by

The dust has settled since the government released its draft Online Safety Bill. Now is therefore a good time to evaluate its aims, methods, and potential impacts, which we will do so in this two-part post. The first post will have a look at the overall architecture of the bill, discussing what it is trying to do and how it is trying to do it. The second post will survey responses to the bill from academics and civil society campaigners, discussing whether the bill does too much or not enough. 

The general strategy of the Online Harms Bill is to place duties on “regulated services”, requiring them to identify and mitigate system level risks of harm to their users. This post will focus on the meaning of “regulated services”, and the various duties that the Online Harms Bill places them under. As things stand, the bill would give significant powers to Ofcom, which would act as a regulator and enforcer of the various duties created under the bill. This first post will conclude with a look at the new powers that would be given to OFCOM under the bill.

Regulated Services

The bill would apply to “regulated services”. The definition of regulated services is found in section 3: regulated services are either “user-to-user services” or “search services” which “have links to the United Kingdom” and which are not exempt. 

The first important thing to note is the broadness in the drafting of all these definitions. A service has links to the UK if it has a significant number of users in the UK, if UK users are a target market, or if there are “reasonable grounds to believe that there is a material risk of significant harm to individuals in the UK” using the service. Thus, territorially, a very wide number of online services could be caught. 

A “user-to-user service” (since publication of the draft bill generally called a ‘U2U’ service in commentary), defined in section 2, is a service which allows users to share user generated content with other users. The definition excludes content generated by the site itself, and content shared by those employed by the service. 

This is a widely defined provision. Obviously intended to catch large social media organisations like Facebook, Twitter, Instagram and TikTok, it is nonetheless drafted broadly enough to also include smaller blogs, websites for shopping, online gaming sites and other categories of online platform which hosts user generated content. 

However, the exact nature of how those sites will be regulated will be dependent on their classification by OFCOM as category 1 or 2A/2B services. Category 1 is reserved for services with greater functionality and larger user bases, and services classified as such are subject to stricter duties, which will be explained in the duties section; machinery for classification is currently found in Schedule 4 of the bill. 

Some exceptions apply, but these are tightly drafted. Functions such as email and SMS/MMS services, limited functionality services (such as services where users can only comment on site generated content), internal services such as intranets, and public bodies in the exercise of a public function are exempt. Exemptions can be found in Schedule 1; per s.3(8), the Secretary of State can amend the exempt services found there. 

“Search services” are defined as services providing an internet search engine that are not U2U services. Much of the same duties apply to search and U2U services, so these will be largely dealt with together. 


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Germany’s federal court declares Facebook’s hate speech curbs to be in breach of citizens’ constitutional rights

2 August 2021 by

The Federal Court of Justice in Germany (the Bundesgerichtshof, or BGH) has ruled against the social network provider that deleted posts and suspended accounts amid allegations of “hate speech”.

The ruling was handed down on the 29th of July (Bundesgerichtshof, Urteile vom 29. Juli 2021 – III ZR 179/20 und III ZR 192/20) and at the time of writing this post, the full judgment had not been published. The following summary is based upon the Bundesgerichtshof’s press release. NB the quotes from the plaintiff’s Facebook entries are in the judgment, i.e. the public domain, in other words no offence is intended by repeating them here.

Judgments of July 29, 2021 – III ZR 179/20 and III ZR 192/20

The III Civil Senate of the German Federal Court of Justice has ruled that Facebook’s terms and conditions of April 19, 2018 for the deletion of user posts and account blocking in the event of violations of the communication standards set out in the terms and conditions are invalid. This was because the defendant provider had not undertaken to inform the user about the removal of his post at least subsequently and about an intended blocking of his user account in advance, had not informed them of the reason for this and had not given them an opportunity to respond with a subsequent new decision. If, due to the invalid terms and conditions of the provider’s contract, a user’s contribution was deleted and their account temporarily subject to a partial blocking, the user should be able to claim the activation of the deleted contribution and, an undertaking that there would be no further account blocking or deletion of the contribution upon its renewed posting.

Background facts

The parties disputed the legality of a temporary partial blocking of the plaintiffs’ Facebook user accounts and the deletion of their comments by the defendant.

The plaintiffs each maintained a user account for a worldwide social network operated by the defendant’s parent company, whose provider and contractual partner for users based in Germany was the defendant. They claimed against the defendant – to the extent still relevant for the appeal proceedings – in respect of activation of the posts published by them on the network and deleted by the defendant, for an injunction against renewed blocking of their user accounts and deletion of their posts, and – in one of the appeal proceedings – for information about a company commissioned to implement the account blocking.


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Latest Law Pod UK: Care orders and newborn babies

29 July 2021 by

In the second of their series of family law podcasts, Clare Ciborowska and Richard Ager of 1 Crown Office Row Brighton discuss the vexed area of care proceedings where it is considered necessary to take a baby away from its mother for the infant’s safety. The law on newborns is pretty thin and the social worker practice varies from area to area. Earlier this year the Public Law Working group published a series of recommendations for improvements in practice to make the whole procedure less traumatic for the mother. See Recommendations to achieve best practice in the child protection and family justice systems Final Report (March 2021) Whether these recommendations will be implemented remains to be seen.

The ability to make interim care orders under s.38 Children Act 1989 is one of the family court’s most significant powers. With newborn babies, prompt action is not only desirable, it’s essential. But not so easy to achieve in practice, as you will hear from our lively and comprehensive conversation.

This episode will be the last before we take our August break, but plans for Law Pod UK from September are already being hatched so remember to tune in!

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer  or wherever you listen to our podcasts. 

Please remember to rate and review us if you like what you hear.

Napier barracks conditions held not to meet minimum standards

28 July 2021 by

Napier Barracks, Kent, which was the subject of this claim. Image: The Guardian

In R (NB & Others) v Secretary of State for the Home Department [2021] EWHC 1489 (Admin), the High Court ruled that the treatment of asylum seekers at Napier military barracks did not meet minimum legal standards, that the process for allocating asylum seekers to accommodation centres was flawed and unlawful and that the six claimants had been falsely imprisoned during the “inevitable” Covid-19 outbreak. David Manknell of 1 COR was junior counsel to the SSHD.

Background

In September 2020, Napier military barracks was converted into a medium-term accommodation centre for asylum seekers. By the end of January 2021, the centre had witnessed a major outbreak of Covid-19, protests by residents against poor conditions inside the facility and a fire.

NB and the other five claimants had been kept at the barracks for months. This was despite evidence that that they had all experienced “people trafficking and/or torture prior to their arrival in the United Kingdom” and that several of them were suffering from pre-existing mental health issues as a result of their experiences. At issue in this case was the Defendant’s decision in each of the Claimants’ cases that they should be accommodated at the Barracks.


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The Weekly Round-Up: Freedom Day, Tokyo 2020 and the Judicial Review and Courts Bill

26 July 2021 by

In the news:

Monday was England’s so-called ‘Freedom Day’, with the final coronavirus restrictions lifted.  This means nightclubs can reopen; bars are no longer table service only; there are no more limits on attendee numbers at large events; and it is no longer mandatory to wear face coverings in public spaces, although the recommendation to do so remains. It also remains a legal obligation to self-isolate if contacted to do so by NHS Test and Trace, although it is not mandatory to download the NHS Covid-19 app, or to self-isolated if ‘pinged’ by it (i.e. alerted by the app to self-isolate).  NHS Test and Trace contacts people who have been named by a positive-testing person as a close contact and are legally obliged to self-isolate or face fines from £1000 for failing to comply.  By contrast, the Covid-19 app works by using Bluetooth to ‘ping’ people who may have come into close contact with a covid-positive person.  A resulting ‘pingdimic’ has led to concerns about keyworker staff shortages leading to a hospital understaffing and potential supermarket food shortages.  Frontline health workers can be exempt from self-isolation in exceptional circumstances, as can other keyworkers if their employers apply for and receive government authorisation specific to a named worker.  From August 16th anyone who has had both vaccination doses will not need to self-isolate as a close contact.

Civil liberties organisation Liberty has expressed concerns that so-called “Freedom Day” is in fact “a moment of fear and division”.  The organisation has criticised the Government for its “divisive, coercive strategies”, among which it includes “vaccine passports and mandatory vaccinations”.  Vaccine passports in particular are condemned as “a step towards a two-tier society”.  Despite these concerns, the organisation also expresses a worry that lifting restrictions has “serious implications” for the rights of frontline workers and the clinically vulnerable”.

In other news:

On Wednesday, the government published its Judicial Review and Courts Bill following an Independent Review of Administrative Law and a government consultation.  The Bill seeks to “reform the rules around Judicial Review and facilitate a number of procedural improvements across the court system”.  One of the reforms proposed is to remove Cart Judicial Reviews, which are High Court reviews of an Upper Tribunal’s refusal to grant permission to appeal.  An “unprecedented” coalition of over 220 organisations, including Amnesty International UK, Greenpeace, Refugee Action and Stonewall, has criticised the Bill and proposed changes to the Human Rights Act.

On Friday the 2020 Summer Olympics began with an opening ceremony of dancers and acrobats performing to a near-empty stadium.  Outside, protesters clashed with Tokyo police as Japanese citizens showed their anger at the games continuing to be held amidst the fourth declaration of an official state of emergency in Japan due to the coronavirus pandemic.  In nine prefectures including Tokyo and Osaka, residents have been asked to go out for essential reasons only.  In the week the Games began Japan saw numbers of Covid-19 cases not seen since January.

On Saturday the first ever “Reclaim Pride” march took place in London, with thousands taking to the streets to demand inclusive LGBTI+ rights.  The event was organised amidst concerns that traditional Pride events (like London Pride, this year postponed to 11 September) are becoming less like protests and more like “over-commercialised parties”. 

In the Courts:

  • Royal Mail Group Ltd v Efobi [2021] UKSC 33 – the Supreme Court unanimously dismissed an appeal from Mr Efobi, a postman for the Respondent, Royal Mail.  The Appellant’s claim in the employment tribunal for direct or indirect racial discrimination was dismissed but the decision was overturned on appeal to the EAT.  The Court of Appeal then reversed the decision in favour of Royal Mail and Mr Efobi was granted permission to appeal to the Supreme Court.  Efobi argued (i) that a change in the wording of equality legislation from “where … the complainant proves facts” to “if there are facts from which the court could decide” removed the burden on the claimant to prove anything at the first stage of employment discrimination cases, and (ii) that the EAT should have drawn adverse inferences from the absence of a potential witnesses for the Respondent Royal Mail.  The appeal was dismissed on the grounds that (i) the new wording simply clarifies that evidence from both parties must be considered, not only that of the claimant and (ii) tribunals are free to draw or decline to draw inferences using common sense.  Furthermore, even if adverse inferences were drawn, the recruiter’s knowledge of Mr Efobi’s race was by itself insufficient evidence of racial discrimination.
  • Secretary of State for the Home Department v GA & Ors [2021] EWCA Civ 1131 –the Respondent had applied for British passports for three of her children (British citizens living in Country X) from Her Majesty’s Passport Office (HMPO), for which the Appellant is responsible.  HMPO refused the applications for lack of evidence of the consent of a person with parental responsibility under the law of Country X.  HMPO considered that person to be the children’s father alone.  It was unsafe or impossible for the mother to obtain the father’s consent, as he had been arrested following “months of extremely serious physical and psychological abuse including torture of me.”  A declaration signed by the father that he had no objection to his children travelling abroad with their mother was not accepted by HMPO as permission to grant British passports.  HMPO’s passport refusal was quashed in a judicial review claim because: (i) there was no evidence to conclude that the father had to consent under the law of Country X; (ii) HMPO failed to consider the application of Article 22 of the 1996 Hague Convention; and (iii) Article 22 did apply and HMPO was entitled to refuse to apply the law of Country X.  Article 22 allows the dis-application of an applicable law provision if it would be contrary to public policy, considering the best interests of the child.    The Court of Appeal upheld the quashing order and refused the Appellant’s argument that HMPO was not obliged to consider, and should not have considered, Article 22.  It also rejected the argument that HMPO should have asked the father alone for his consent, on the basis that the Country Profile for Country X suggested it allocates sole parental responsibility to the father.  The Country Profile was insufficient evidence to conclude in this specific case that the mother had no authority to apply for British passports.  Furthermore, upholding this law of Country X would be contrary to ECHR Articles 14 and 8, as it discriminates based on sex.  Accordingly, the appeal was dismissed and permission to appeal was refused.
  • The High Court has ruled in McNally v Saunders that a retired solicitor’s ‘abrasive’ and ‘frequently puerile’ blog posts are entitled to the same level of protection as mainstream journalism. Chamberlain J struck out a harassment claim brought by a local government officer as having no reasonable prospect of success and has granted summary judgment for the defendant under CPR rule 24.2. The claim was brought under the Protection from Harassment Act 1997 by Dr Lisa McNally, MBC Sandwell’s director of public health and a mental health campaigner. McNally was the subject of five blog posts, criticising her decision to post a two-minute video about her own struggle with mental health and questioning her qualifications. She said the posts had caused her ‘crippling’ anxiety about attending meetings and made her worry about her ability to do her job. Given that Saunder’s posts’ were ’frequently puerile tone and style, a casual reader… might be surprised to discover that they are the work of a semi-retired former solicitor,’ the judge said. However ’none of these features disentitles them to the protections afforded by the law to journalistic expression.’ The public interest in McNally being able to continue in her role was outweighed by Saunders’ Article 10 right to free expression.

On the UKHRB:

Be Careful What You Tweet For (part 3)

26 July 2021 by

Forstater v CGD Europe & Others [2019] UKEAT/0105/20/JOJ

The Employment Appeal Tribunal has ruled that the belief that biological sex is immutable is a protected philosophical belief under the Equality Act 2010.

Maya Forstater (the “Claimant“) holds gender-critical beliefs: that biological sex is real, important, immutable and not to be conflated with gender identity. She expressed such views on Twitter when the Government introduced proposals to reform the Gender Recognition Act 2004 to allow people to self-identify their gender (in one instance referring to someone who identifies as gender fluid as a “part-time cross dresser”).

These tweets were the subject of an employment dispute after several members of staff complained about them and the Claimant’s employer did not renew her consultancy contract. The Claimant later brought complaints of belief and sex discrimination against her employer in the Employment Tribunal.

The Tribunal ruled that the Claimant’s gender-critical beliefs were “absolutist in nature” and not worthy of respect in a democratic society. As such, they did not qualify for protection as a philosophical belief under the Equality Act 2010 (for a full analysis of the Tribunal’s decision, see earlier blog posts here and here).

The Claimant subsequently appealed the decision to the Employment Appeal Tribunal (the “EAT“). Last month, it allowed the appeal, ultimately ruling that the Tribunal had erred in law. The reasoning behind this will be explored below.

This blog post only provides a summary of the legal analysis contained in the EAT’s judgment. It does not seek to comment on its merits, or indeed the correctness of it.


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Supreme Court dismisses solitary confinement appeal

22 July 2021 by

R (on the application of AB) v Secretary of State for Justice [2021] UKSC 28

The Supreme Court has unanimously dismissed an appeal which considered whether treatment throughout a 55 day period in solitary confinement of a then 15-year-old appellant in Feltham Young Offenders’ Institution constituted a violation of Article 3 of the European Convention on Human Rights.

Facts

The case concerned the treatment of the Claimant, AB, whilst he was detained at Feltham Young Offenders’ Institution (FYOI) at the age of 15, between the period of 10th December 2017 and 2nd February 2017. AB had been remanded in custody at FYOI whilst awaiting sentence for indecent exposure and sexual assault. The pre-sentence report concluded that his risk of dangerousness was high, as was his risk of causing serious harm.

Throughout the above period at FYOI, AB had been placed under a “single-unlock” system, whereby he could not leave his cell when any other detainees were out of their cells, apart from some time in “three-officer unlock” which involved three officers being present whenever he left his cell. It was undisputed that he was placed under this regime for his own safety, as well as for the protection of others.

AB appealed to the Supreme Court to decide two questions. The first: whether the solitary confinement of persons under 18 automatically constitutes a violation of article 3 of the European Convention on Human Rights (“the Convention”). The second: if not, whether there is a universal test for the compatibility of solitary confinement of children, namely that “exceptional” circumstances must determine the treatment as “strictly necessary”.


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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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