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JT v First Tier Tribunal [2018] EWCA Civ 1735 – read judgment
Between 1968 and 1975 the appellant JT was repeatedly assaulted and raped by her stepfather in her family home. Many years later, her assailant was prosecuted for those crimes and convicted on all counts in 2012. As a victim of violent sexual crime, JT applied for compensation under the Criminal Injuries Compensation Scheme. Her application was refused on the basis of the “same roof” rule, which stated that an award would not be made in respect of a criminal injury sustained before 1 October 1979
if, at the time of the incident giving rise to that injury, the applicant and the assailant were living together as members of the same family
This criterion may sound odd to anyone with a professional or even mild interest in crime stories, where the prime suspect is considered to be a member of the family of the victim, whether of rape, abuse, or even murder. But the thinking behind the rules – and there has to be a bright line for eligibility – was that there should be a requirement that the victim and the assailant no longer live together. This would at least suffice to ensure that the rapist or abuser would not benefit from the award accruing to his victim, and, if possible, is brought to justice. Continue reading →
Updated | Next week will mark the 10th anniversary of the 11 September 2001 terrorist attacks. Despite the intervening decade, the states threatened by terrorism are still puzzling out the right balance between the powers of security services and the rights of suspected terrorists to due process.
The intelligence services have now tightened up their policy towards interviewing detainees overseas, but one policy which is still in flux is the control order regime, soon to be succeeded by Terrorism Prevention and Investigation Measures (TPIMs).
Graham Phillips, the Claimant, is a British national and video blogger who posts content from the Donbass dressed in Russian military fatigues. He says he is a journalist who provides a “counterbalance” to widespread western misunderstanding of the true situation in Ukraine but the Administrative Court disagrees. On 12 January 2024, it handed down judgment in R (Phillips) v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 32 (Admin), in which it upheld the Government’s view that the Claimant is a propagandist for Russia who is lawfully subject to a sanctions regime which allows the state to freeze his assets.
With a third rejection of Theresa May’s deal on Friday, Brexit remains a dismal subject. Dismal not only for its economic but for its human rights implications: this week, the Parliamentary Joint Committee on Human Rights published its report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The report (available here) raises concerns about legal limbo for the 3m EU citizens remaining in the UK post-Brexit. In particular, it makes the following recommendations:
The bill in its present form is a ‘blank cheque’ affording ministers excessive discretion to remove rights. The JCHR recommends an amendment requiring the Secretary of State to ensure that any regulations contain measures to protect the acquired rights of persons who benefited from EU free movement of persons prior to Brexit.
The EU Settlement Scheme is unclear on the implications of failure to register the time limit. The JCHR recommends provisions for registration outside the time limit, and/or otherwise to limit the implications of the time limit.
The EU Settlement Scheme in its present form would issue only electronic proof of a successful application. The JCHR recommends the issuing of physical proof, echoing the EU Justice Committee in a comparison to the Windrush scandal on this point.
Vulnerable people may have difficulty in accessing the EU Settlement Scheme. The JCHR recommends that steps be taken to ensure that vulnerable people are aware of their rights, and have assistance in accessing the scheme.
Finally, the JCHR recommends clarification of the Common Travel Area for Irish citizens.
Last week Justice Secretary Chris Grayling reported on how often closed material proceedings (CMPs) have been sought under the Justice and Security Act 2013 (JSA), as he is required to do annually under the Act. As the first and only official consolidated presentation of how the new CMP regime is being used, this two-page written ministerial statement warrants close attention.
The Secretary of State’s report provides only numbers. In the Bingham Centre’s Review of the First Report by the Secretary of State, we have tried to match cases to those numbers and, when read in light of the cases, have found good reasons to be concern about the difficulty of verifying the accuracy of the report, the ways that CMPs are being used, and the adequacy of the reporting requirements.
AT v Secretary of State for the Home Department [2012] EWCA Civ 42 – Read Judgment
The Court of Appeal has upheld a challenge to a control order on the basis that the person subject to the order (‘the controllee’) had not been given sufficient information about the case against him.
The focus of this blog post is on yet another challenge to the imposition of a control order. Introduced by the Labour government in the Prevention of Terrorism Act 2005, a control order is a controversial tool used to restrict and monitor suspected terrorists. They have now been superseded by Terrorism Prevention and Investigation Measures (or “TPIMs”, described by some critics as “control orders lite”), which will in due course have their time in the legal spotlight. For now, there remain a small number of cases brought under the old control orders regime which are being determined. As this decision demonstrates, even their consignment to history has not shielded them from careful judicial scrutiny.
Updated | On 3 November the judge acting as coroner for the 7/7 inquests ruled that she does not have the power to hold secret hearings to hear evidence which, if made public, would pose a threat to national security. Dame Heather Hallett also ruled that although she, as a Court of Appeal Judge, could look at ‘intercept evidence’ governed by the Regulation of Investigatory Powers Act 2000 (“RIPA”), such material could not form part of the evidence at the inquests.
The fundamental problem faced by Hallett LJ, linking the two parts of her ruling, was what to do about intelligence material , the revelation of which “in unredacted form would threaten national security” but which might have a bearing on her findings at the inquests. The problem can be traced back to Hallett LJ’s earlier ruling concerning the issues to be determined at the inquest, in particular the requirement for:
Russia’s invasion of Ukraine has dominated the news since the conflict began. The human rights implications of the conflict will be far reaching and devastating, and this Weekly Round-Up will no doubt examine the impact of events as they unfold. This week, our focus is on the UK government’s approach to Ukrainian refugees. The Home Office is still insisting that only those refugees with family ties to the UK will be able to satisfy visa requirements to enter through the ‘Ukraine Family Scheme’. Those who successfully use this route will have the right to work and to claim benefits. However, they will not be able to access other assistance, such as accommodation, as was offered to refugees from Afghanistan, for example, because the Home Office assumes they will be offered support by UK relatives. This approach has been widely criticised as unduly restrictive, given that many European countries have dropped their visa requirements altogether so as to enable a greater number of Ukrainians quickly to reach safety. The Home Secretary rejected this more permissive policy earlier this week, arguing that security and biometric checks imposed by the visa system were essential to prevent extremists and Russian agents entering the UK. But with one million refugees reportedly having fled their homes already, and four million more predicted, many campaigners have pointed out that a fast route to safety is urgently needed. On Friday, the Home Office stated that they were working on an ‘unlimited sponsorship route’ which would not be dependant on family ties, but it remains unclear when this will be launched, or what support it will offer.
In other news:
The House of Lords has defeated the controversial Nationality and Borders Bill for the fourth time, removing clause 11. This measure would have divided refugees into two groups depending on how they arrived in the UK, potentially excluding those who took a route outside the law. For example, those who arrived on small boats through the Channel could have their asylum application automatically ruled inadmissible, face up to four years in prison, be banned from accessing public funds, and have family members banned from joining them. Peers had previously struck out a clause allowing the government to strip individuals of their British citizenship without warning. The changes made by the Lords will now be sent back to the Commons, who can either accept or amend them.
A leaked report has suggested that the Environment Agency has only prosecuted 7% of the serious incidents of pollution investigated between 2016 and 2020. Agents within the organisation prepared case papers for 495 serious incidents in the period, all of which they recommended for prosecution. However, only 35 cases actually reached court after managers intervened. The others were either dropped entirely, or dealt with using less serious sanctions such as a warning letter. These were all incidents of the most serious form of waste pollution, for example, those involving illegal discharges of raw sewage, and some incidents were known to be perpetrated by organised crime groups. Workers within the Agency have linked the lack of action to the severe cuts to the Agency’s resources. The Environment Agency responded to the report by stating that they follow the Code for Crown Prosecutors, which states that prosecution should only be pursued where there is a realistic prospect of a successful conviction, and when it is in the public interest.
The Department of Work and Pensions (DWP) has been sent a letter before action by the Greater Manchester Coalition of Disabled People (GMCDP) and non-profit legal group Foxglove, who claim that the department’s use of a computer algorithm to decide who should be investigated for fraud unlawfully discriminates against disabled people. The two groups claim that there is a lack of transparency about how the algorithm works, and called on the DWP to explain how it prevents discrimination in its use of the algorithm. The DWP responded by saying that human agents always review cases of suspected fraud, and thus the effects of the algorithm were being carefully monitored. The government’s statement on Transparency in Automated Decision making can be found here.
In the courts:
U3 v The Secretary Of State for the Home Department [2022]: The Special Immigration Appeals Commission (SIAC) dismissed an appeal by U3, a joint British-Moroccan citizen, against the decision of the Home Secretary to remove her British citizenship in 2017, and prevent her entry clearance in 2019. U3’s citizenship was withdrawn because the Home Office determined that her links with ISIL in Syria implied that she posed a national security risk. In 2019, U3’s children were repatriated to the UK, and U3 sought entry clearance to be reunited with her children, relying on her Article 8 right to respect for her private and family life. Entry clearance was denied, with the Home Secretary claiming that her Article 8 rights were not engaged, and even if they were, her separation from her children was proportionate to the risk she presented to national security. The key issues in this appeal were as follows. First, on what grounds could the SIAC interfere with the SSHD’s decision; Second, whether U3 in fact posed a risk to national security, given that if she did, precedent established that the separation from her children was likely to be proportionate. Concerning the first issue, the court found, following Begum, the SIAC can interfere with the SSHD’s decision even where it concerns national security on the usual grounds available for judicial review. Thus if it was shown that the decision was flawed according to the public law standard of review, and the outcome, but for the error, would have been different, the SIAC could reverse the decision. On the second issue, counsel for the Claimant argued that given the accepted factual evidence of the coercive and abusive relationship U3 had with her husband, with whom she travelled to Syria in 2014, her decision to live in an ISIL-controlled part of Syria did not demonstrate that she was ideologically aligned with ISIL, nor that she had become radicalised. However, the court found that the SSHD could rationally find that U3 herself was aligned with ISIL in light of evidence that she left for Turkey of her own accord, and that she had a good knowledge of the ideology of the group and of the atrocities it had committed. Given this finding, the SSDH’s decision was proportionate, and the appeal was dismissed.
On the UKHRB:
David Burrows discusses the new Divorce, Dissolution and Separation Act.
Ibrahim and others v United Kingdom [GC], App nos. 50541/08, 50571/08, 50573/08, and 40351/09 – read the judgment here
The Grand Chamber has found a violation of Article 6(1) and 6(3)(c) in relation to one of the four applicants before it, partially overturning the earlier decision of the Chamber and providing much food for thought on the future of Article 6.
by David Scott. Many thanks to my colleagues at University of Zurich for comments on earlier drafts of this piece. Any mistakes are undoubtedly my own.
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM
In an exhaustive and detailed judgment coming to over 200 pages, the ECtHR held that both the bulk electronic communications interception regime operated by the UK’s intelligence agencies under the Regulation of Investigatory Powers Act 2000 and its provisions for acquiring communications data from telecommunications operators violated Articles 8 and 10 of ECHR.
However, the ECtHR held that there was no violation of Article 8 through the UK’s receipt and use of similar information obtained from other countries.
The ECtHR’s judgment is as noteworthy for what it deemed to be incompatible with the ECHR as what it deemed to be incompatible. In contrast to the tenor of many of the headlines in the media about the judgment, it was not an unreserved endorsement of the criticisms that have been levelled at the intelligence services in light of the Snowden revelations. The ECtHR’s comments as to the proportionality and necessity of the bulk collection of electronic communications, as well as about the adequacy of the safeguards and oversight structures will be of some consolation to the government.
The real issue for the Government is whether the ‘checks and balances’ in the Investigatory Powers Act (which is not yet fully in force) will be sufficient to defeat the criticisms made by the ECtHR of the previous regime under RIPA; in particular over the selection criteria for material that would be seen by human eyes and whether there are sufficient ‘journalistic’ safeguards.
A heated debate has arisen across the UK and abroad after Safeguarding Minister Jess Phillips last week rejected calls for a public inquiry into child grooming gangs in Oldham. In a letter sent to Oldham Council in response to its request for a public inquiry, Phillips stated it was for “Oldham Council alone to decide whether to commission an inquiry into child sexual exploitation locally, rather than for the Government to intervene”. The decision has led to widespread criticism, with Shadow Justice Secretary Robert Jenrick calling it “shameful” and Elon Musk arguing that Phillips “deserves to be in prison”. Reform UK leader, Nigel Farage, has defended Musk’s involvement as an exercise in “free speech”. Professor Alexis Jay, former Chair of the Independent Inquiry into Child Sexual Abuse (IICSA), has suggested that it is change that is needed rather than a fresh inquiry. A statement published on Sunday by campaign group Act on IICSA warned against the politicisation of sexual violence, which only “hinders the implementation of vital and urgent overhaul” to existing systems. In a press conference on Monday, Sir Keir Starmer defended Jess Phillips and his own record as Director of Public Prosecutions, accusing critics of “spreading lies and misinformation” and of being interested in themselves rather than the victims.
Former President of the Supreme Court, Lord Neuberger, has warned that legal aid cuts in family cases are denying parents their human rights, stating that the cuts are “wrong in principle”. Following legislative changes in 2013, parents in private children’s law cases are unable to access legal aid – irrespective of their means – unless abuse is alleged. In an exclusive interview with the Guardian, Neuberger called it “almost disgraceful” that parents are given human rights and then denied the ability to enforce them as a result of the lack of legal aid. “Rights aren’t meaningful unless they can be enforced”, he added. A Ministry of Justice spokesperson responded to Neuberger’s position by emphasising the importance of families getting the “best outcomes as quickly as possible”, pointing to the mediation scheme available for family disputes which is partially Government funded.
In Other News
The latest report published by HRMMU, the UN team investigating human rights in Ukraine, details the deteriorating situation in the region with a surge in monthly civilian casualties and allegations of executions of Ukrainian Servicepersons. Evidence continues to suggest that individuals being held as Prisoners of War (POWs) are suffering torture and ill-treatment, including sexual violence. While the report acknowledges mistreatment of Russian POWs, these instances are said to appear more “isolated” than that of Ukrainians. As the war rages on nearly three years after the Russian invasion, the report calls for both countries to “intensify” their efforts to uphold international human rights law. The report was published just days before Ukraine launched a renewed offensive in Russia’s Kursk region on Sunday, leaving Russian civilians “shaken”.
Ireland’s landmark hate crime law – the Criminal Justice (Hate Offences) Act 2024 – came into force last week, marking a historic moment in Irish law regarding the treatment of hate-motivated offences. The new law prescribes increased prison sentences where hatred predicated upon real or perceived protected identity characteristics either motivates a crime or is demonstrated during it. Ireland Justice Minister Helen McEntee said last Tuesday that the “legislation meets a clear gap in [Irish] laws and is widely supported by the public”, bringing Ireland out of the small group of EU countries that continue not to have specific hate crime offences set out in law. The bill had originally also contained provisions tightening the laws around hate speech, but this section was dropped in October after McEntee revealed there was no longer a “consensus” on its inclusion. The law around hate speech in Ireland is governed by the Prohibition of Incitement to Hatred Act 1989, which remains in force.
Activists are celebrating the inclusion of measures in the 2025 National Defence Authorisation Act (the annual US defence spending bill) to address the oppression of the Uyghur Muslim population in China’s Xinjiang region, which the US has labelled genocide. The bill was signed into law by President Joe Biden shortly before Christmas and incorporates the bipartisan Uyghur Human Rights Policy Reauthorisation Act 2024 which extended the Uyghur Human Rights Policy Act passed under Trump in 2020. The Act greenlights sanctions against Chinese officials believed to be involved in Uyghur oppression. The renewal of these sanctions has been welcomed by the Uyghur Human Rights Project, with UHRP Executive Director Omer Kanat calling it “a gift of hope for Uyghurs”. The move represents the latest show of continued support for the Uyghur population by the United States.
In the Courts
On Sunday, the Criminal Division of the Seoul Western District Court rejected objections made by Yoon Suk Yeol, suspended President of South Korea, against the execution of arrest and search warrants against him. Yoon has been suspended as President pending impeachment proceedings following a failed attempt in December to impose martial law. Anti-corruption investigators issued the arrest warrant for Yoon and a search warrant for the Presidential residence after the suspended President ignored multiple summons for questioning. Yoon’s legal team filed an objection to the warrants in the courts last Thursday, arguing that they were illegal on the basis that the investigators did not have jurisdiction to issue them, and that, in any case, a criminal law prohibiting the execution of warrants in military areas should apply in his case. It has not yet been revealed on what grounds the court has rejected his arguments, and it is expected that a re-appeal may be lodged with the Supreme Court once this is clear. In the meantime, the Presidential Security Team are taking measures to block Yoon’s arrest, installing barbed wire and barricading the compound where he is residing. The arrest warrant expired at midnight on Monday January 6th with Yoon successful in defying arrest, although investigators are seeking an extension of the warrant’s deadline.
In “The Ballad of East and West”, Rudyard Kipling memorably wrote
East is East, and West is West, and never the twain shall meet
Till Earth and Sky stand presently at God’s great Judgment Seat.
Is this an accurate description of the rule of law and Parliament? Is the rule of law a matter best left to lawyers, judges and courts, or do politicians and Parliament also have a role to play in upholding the rule of law, by holding the Government to account over rule of law violations, and ensuring that proposed legislation do not offend the principles of the rule of law?
A new Bingham Centre report published today makes a valuable contribution as the first ever, but hopefully not the last, empirical study on the rule of law in Parliament. By examining references to the rule of law over the 2013-14 and 2014-15 Parliamentary sessions in Parliamentary debates, parliamentary questions and written statements, using both quantitative and qualitative analysis, the report aims to improve our understanding of how the rule of law has been used in Parliament. Continue reading →
Kenneth Clarke reveals what cuts will mean for the courts – Joshua Rozenberg: The Ministry of Justice has to make £2bn cuts from its £9bn budget (see our post on where the cuts are likely to come from). According the justice ministers’ Tory conference speech, legal aid is in line for a “total review” – no surprises there – and that popular panacea, alternative dispute resolution, will be encouraged and court discouraged. Rozenberg concludes: “Things are not going to get better and nobody should pretend otherwise. All we can hope for is the best publicly funded legal system that we can afford.” Difficult times ahead for access to justice.
This article, by Bridget Dolan QC, is a slightly edited version of a piece which first appeared on the UK Inquest Law Blog. The original post can be found here.
Re AB (Application for reporting restrictions: Inquest) [2019] EWHC 1668 (QB) 27.6.19 (judgment here)
When seeking any order it always helps to make the right application, to the right court, following the right procedure. Although when it does go horribly wrong it at least provides valuable learning for the rest of us.
So make sure you are sitting comfortably, and get ready to be educated by Mr Justice Pepperall dishing out a lesson on making an application for reporting restrictions in respect of an inquest.
Last week’s round-up detailed China’s ongoing oppression of Uyghur Muslims in Xinjiang province. This week, the government narrowly defeated a backbench rebellion in the form of an all-party amendment, strongly endorsed in the Lords, which would have given victims of genocide the ability to obtain a determination in the High Court confirming the existence of genocide in their country. Such a determination would have required Parliament to reconsider all trade deals with the country in question. The amendment aimed to deal with a current impasse whereby international courts cannot make a ruling on genocide because the involved nations, for example, China, veto such matters from consideration, or do not recognise the relevant courts. The Trade Secretary, Greg Hands, had strongly opposed the amendment, suggesting that it fundamentally undermined Parliamentary sovereignty in giving the courts too much power to determine UK trade deals. The government’s failure to act in seeking to prevent serious violations of human rights has been widely criticised. Tobias Ellwood, the chair of the defence select committee, suggested that ‘the UK was suffering from an absence of clarity about what we believe in’. In response to the motion’s defeat, the independent peer Lord Alton, who co-sponsored the motion in the Lords, has stated that the amendment will be re-drafted to make explicit the requirement that Parliament would vote on the revocation of all trade deals with a country where a determination of genocide had been made. The revised amendment will be re-submitted in the Lords as quickly as possible. The US State Department’s declaration that the treatment of Uyghur Muslims in China represents genocide and crimes against humanity on Tuesday, is likely to embolden rebels to maintain their pressure on the UK government for further action.
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JT v First Tier Tribunal [2018] EWCA Civ 1735 – read judgment
Last week Justice Secretary Chris Grayling reported on how often closed material proceedings (CMPs) have been sought under the 
AT v Secretary of State for the Home Department [2012] EWCA Civ 42 – 
him and others v United Kingdom [GC], App nos. 50541/08, 50571/08, 50573/08, and 40351/09 – read the judgment 
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM
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