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Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school. She was kidnapped and murdered and her body was found in September 2002. In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff. When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail. The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story.
The Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking. There is a suggestion that the Official Secrets Act 1989 may have been breached. The Guardian plans to resist this “extraordinary demand to the utmost” – see The Guardian 17th September – “Hacking: Met use Official Secrets Act to demand Guardian reveals sources.”
And so we come to the end of another year. The Covid-19 pandemic has continued to dominate the news, particularly with the very concerning surge of the Omicron variant this month. Many reading this will be separated from loved ones over Christmas. The year has also seen the return to power of the Taliban in Afghanistan after the US withdrawal at the end of August, the resumption of military rule in Myanmar and the ongoing persecution of the Uyghurs by the Chinese government, this year recognised by the House of Commons and the US government (as well as many other bodies and organisations) as constituting a genocide. So, one could say that this year has rivalled last year for infamy.
But what, I hear you ask, about the law? As always, this year has been packed with fascinating and important legal developments — many of which you may have caught, but some of which may have passed under the radar. And so, please refresh your glass (or mug) and join me on another adventure as we review the 10 cases that defined 2021.
President Putin has ordered his troops in Ukraine to cease fire for 36 hours over Orthodox Christmas and has urged Ukrainian forces to do the same. However, the move was rejected by Kyiv, and the US state department, as a “cynical trap” and propaganda move. Putin announced the truce, to begin at noon 6 January 2023, after a call by Patriarch Kirill, leader of the Russian Orthodox Church.
Ministers announced legislation that looks to enforce “minimum service levels” in six sectors, including the health service, rail, education, fire and border security. Unions that refuse to do so will face injunctions and could be sued for damages. Employers will be able to sue unions, and dismiss union members who are told to work under the minimum service requirement but refuse to do so. Prime minister Rishi Sunak, however, vetoed more far-reaching measures that would have increased the threshold for strike ballots, doubled the notice for industrial action from two weeks to a month, and banned ambulance workers from striking.
The British Medical Association have informed the government that junior doctors will strike for 72 hours in March if the action is supported in a ballot opening next week. Doctors would not provide emergency care during the strike. The union, which has 45,000 junior doctor members, wants their real-terms pay restored to 2008 levels: a 26.1 per cent increase. The scale of the strike proposed by the BMA is larger than those to be held by nurses and ambulance staff, and will inflame tensions between the unions and the government. The Royal College of Nursing strikes are for 12 hours at a time, and the ambulance unions are holding 24-hour strikes.
A district court in California has ruled that the Pentagon’s “don’t ask, don’t tell” policy is unconstitutional, and has awarded the plaintiffs a permanent injunction barring further enforcement of the statute embodying the policy. Read judgment.
The Times reports today that Judge Virginia Philips found that the policy violated the plaintiffs’ rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and their rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment. Continue reading →
BM v Secretary of State for the Home Department [2011] EWCA Civ 366 (05 April 2011) – Read judgment
Another control order has been ruled unlawful and quashed by the court of appeal, on the basis that the evidence relied upon to impose it was “too vague and speculative”.
Control orders are a controversial anti-terorrism instrument (see this post) which are soon to be replaced with Terrorism Prevention and Investigation Measures. These will impose less onerous restrictions upon a terrorist suspect. No doubt they will be approached by the courts at some stage. In the meantime, there are still 9 control orders in operation under the current regime. One has just been quashed by the court of appeal.
Latest news: GCHQ has published a detailed blog article which seeks to explain (and defend) the new NHS contact tracing app, which the Government regards as the key to a controlled exit from lockdown.
Coronavirus presents a serious threat to society, legitimising the collection of public health data under Article 9:2 (g) of GDPR regulations, which allows the processing of such data if “necessary for reasons of substantial public interest”. Some of this collection will take the form of contact tracing apps, which have been used in containing the spread of coronavirus in countries such as Singapore.
They work by broadcasting a bluetooth signal from a smartphone which is picked up by other smartphones (and vice versa), meaning that if one user contracts coronavirus, those who have been in contact with that user can be effectively warned and given further advice to stop the spread.
NHSX, the body responsible for setting NHS data usage policy and best practice, has been developing a contact tracing app which is currently undergoing effectiveness trials at RAF Leeming. As it stands, the app either tells you “You’re okay now” or “You need to isolate yourself and stay at home”. It seems likely that this or a similar app will be rolled out over the UK in the coming months.
The UN General Assembly backed a resolution condemning Russia’s actions and calling for an end to the war on Thursday, the eve of the anniversary of the invasion. With 141 supporters, 32 abstentions and seven voting against, the resolution reiterated the UN’s support for Ukraine and called for a “comprehensive, just and lasting peace.” Abstentions included China, India and South Africa, while Russia, North Korea and Syria were among those voting against. General Assembly resolutions are not legally binding but carry great political weight, and the UN Security Council is obstructed from action by Russia’s veto. On the same day in Vienna, a large number of delegates walked out of a parliamentary assembly of the Organization for Security and Co-operation in Europe (OSCE) in protest against Austria’s decision to give visas to Russian officials.
Leading supermarkets in the UK have introduced customer limits on purchases of fruits and vegetables. According to the British Retail Consortium, the shortages are expected to last a few weeks until reliance on imports from Spain and north Africa is counteracted by the start of the UK growing season. Tom Bradshaw, one of the leaders of the National Farmers’ Union (NFU), has called for the UK to “take command” of its supply chains. Citing Brexit, the Ukraine War, and climate change, the NFU wants the government to use the powers granted it by the Agriculture Act 2020 to address exceptional market conditions.
The Marriage and Civil Partnership (Minimum Wage) Act comes into force on Monday. Campaigners argued that the previous position of the law, which permitted 16- and 17- year-olds to marry with parental consent, was being exploited to coerce young people into child marriages for religious or cultural reasons. The new law will automatically recognise those married under the age of 18 as victims of forced marriages, carrying a sentence of up to seven years in prison for those responsible. The legislation also applies to non-legally binding ceremonies. This law does not apply in Scotland and Northern Ireland, where the minimum marriage age will remain 16.
In other news
Ex-Hollywood producer Harvey Weinstein has been sentenced by a Los Angeles court to an additional 16 years in prison for rape. Weinstein was convicted of attacking an actress in a hotel room in February 2013. He denied the charge, telling the court his accuser was “an actress with the ability to turn on her tears” and begged for leniency: “please don’t sentence me to life in prison, I don’t deserve it.” The 70-year-old had already been serving a 23-year sentence in New York for another conviction.
Dominic Raab has announced that rules barring transgender women with male genitalia or those who had committed violent or sexual offences from female prisons in England and Wales apply from Monday. The news follows the recent case of Isla Bryson, the transgender woman convicted of two counts of rape who was subsequently remanded to a woman’s prison in Scotland, the media outcry against which prompted the Scottish Prison Service to announce an “urgent review” of transgender inmates.
Laura Profumo considers the latest human rights headlines.
In the News
The High Court in Belfast today ruled that abortion legislation in Northern Ireland is in breach of the European Convention on Human Rights. The Northern Ireland Human Rights Commission (NIHCR) brought the case to extend abortion to cases of serious foetal malformation, rape and incest.
The Abortion Act 1967 does not extend to Northern Ireland: abortion is only allowed there if a woman’s life is at risk, or if there is a permanent risk to her mental or physical health. In this judicial review, it was held that the grounds for abortion should be extended, though it is still to be determined whether new legislation will be required to give effect to the ruling.
Maya Evans, an activist, is brining a judicial review against the Ministry of Defence in respect of the British Army’s detainee transfer policy in Afghanistan. It is alleged that British forces knew of the torture risks when handing over prisoners to the Afghan security services.
This is the latest in a series of cases where the Government have been criticised in the courts for defence policies in Iraq and Afghanistan. In 2007, the House of Lords (the old Supreme Court) inAl-Skeinieffectively opened the door to such claims by foreign nationals by holding that the Human Rights Act applies outside of the UK.
The most notable recent example is the Binyam Mohamedcase, where the Court of Appeal heavily criticised the security services. Similar issues in relation to secret evidence appear to have arisen in Evans, with The Guardian reporting:
So concerned is the Ministry of Defence about the challenge to the practice, that it is insisting that evidence it had passed to her lawyers must now be suppressed.
As a result, skeleton argument from her lawyers – a document consisting of an outline of the case – includes a number of passages blacked out at the insistence of the MoD.
Following one long excised passage, the document revealed in court today reads: “The lessons from these shocking events is … investigation by the NDS [Afghanistan’s National Directorate of Security] is obviously incapable of providing any satisfaction of the UK’s human rights obligations.”
Read more:
Our posts on the Binyam Mohamed litigation can be found here, here, and here
Our case comment on R (Mazin Mumaa Galteth Al Skeini and others) v Secretary of State for Defence
The Christmas decorations at Middle Temple. Photo by the author.
This time last year I wrote that 2019 had been “perhaps the most tumultuous period in British politics for decades”. Little did I know what 2020 would have in store.
The Covid-19 pandemic has caused loss, suffering and anxiety across not only the UK but almost all of the globe. At the UK Human Rights Blog, we feel deep gratitude to the doctors, nurses, carers and essential workers who have kept society going in what has been a deeply difficult year for so many of us.
In light of this, it is perhaps harder to summon the usual festive spirit that graces the approach of the holiday period — particularly as so many of us will be separated from our loved ones. And yet, perhaps it makes holding onto some spirit of joy all the more necessary.
Writing the article summing up the legal developments of the year is one of the highlights for me as commissioning editor of this blog. Let us embark together on a tour of what the courts had to say over the last 12 months. As ever, it has been a very interesting year.
A number of campaigning groups were recently informed by the Metropolitan Police that Scotland Yard would no longer provide traffic management at their planned demonstrations. Instead, these groups would be required to devise their own road closure plans and to pay a private security firm to carry out the task.
One of the groups, the organisers of the Million Women Rise rally, estimated that this would cost them around £10,000. The groups refused, arguing that this would amount to a breach of their right to protest.
The Met ultimately backed down – but what if it hadn’t? What is the legal position?
Full body scanners are to become the only security option for people flying out of Manchester Airport, the BBC reports today. The excessive amount of coverage given to the disapproval expressed by civil liberties groups has now been counterbalanced by passengers’ attitudes, since it appears that people actually prefer the scanners to the full body pat down, and have been voting with their feet.
According to Manchester Airport, 95% of travellers prefer the scanners and queuing times have been radically reduced. It takes 2 minutes to undergo a pat down, but a mere 27 seconds to pass through a scanner. Continue reading →
R (W, a child) v Secretary of State for the Home Department, Project 17 intervening [2020] EWHC 1299
Does the common law protect the right of foreign residents to relief from destitution?
In this judgment on the Home Secretary’s “no recourse to public funds” (NRPF) policy, the Divisional Court of the Queen’s Bench Division has confirmed that it does, citing authority going back to the time of the poor laws.
The judgment will come as a welcome relief to migrants with human rights visas who may be struggling in the wake of the Covid-19 pandemic. It also provides insight into the interaction between the common law and the Human Rights Act 1998.
Domestic abuse is endemic in UK society. The law’s response has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (rarely used), and uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order). Each is governed by a different set of procedural rules; and different means of enforcement. Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.
Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson[1978] UKHL 1, [1979] AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said:
I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnsonremains important: it provides the continuing House of Lords definition of the stare decisisrule.)
The week began with the first Opposition Day of 2021, with Labour choosing to put council tax and employment rights centre of the Parliamentary stage. This followed an admission last week by Business Secretary Kwasi Kwarteng that the government was reviewing certain workers’ rights which had been saved post-Brexit as retained EU employment law. Responding to allegations that the government planned to scrap the 48-hour maximum work week and change the rules around rest breaks and holiday pay calculation, he tweeted ‘[w]e are not going to lower the standards of workers’ rights’. During the Opposition Day Debate Mr Kwarteng confirmed the review was no longer happening and that the government would not row back on the 48-hour work week, annual leave entitlement or rest breaks at work.
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Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school. She was kidnapped and murdered and her body was found in September 2002. In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff. When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail. The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story. 
A district court in California has ruled that the Pentagon’s “don’t ask, don’t tell” policy is unconstitutional, and has awarded the plaintiffs a permanent injunction barring further enforcement of the statute embodying the policy. 
BM v Secretary of State for the Home Department [2011] EWCA Civ 366 (05 April 2011) –
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