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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoners/page/18/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
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 Thursday, Harry Dunn’s family were granted permission to appeal against the High Court ruling handed down on 24 November, which held in no uncertain terms that Mrs Sacoolas did enjoy diplomatic immunity at the time she killed 19 year-old Harry Dunn while driving on the wrong side of the road in August of last year. The US state department has refused to waive her immunity under Article 32 of the Vienna Convention on Diplomatic Relations, stating that to allow the waiver, and thereby the extradition request that would inevitably follow would set an “extraordinarily troubling precedent”. The arrests of diplomats Michael Kovrig in China and Rob Macaire in Iran over the last year highlight the continued importance of the inviolability of diplomatic agents serving abroad. However, where there has been an unlawful killing by a family member of an agent, natural inclinations of justice are upset by the failure of a longstanding diplomatic ally to simply do the right thing.
The judgment accordingly decriminalises gay sex, in a landmark ruling for gay rights. Chief Justice Dipak Misra said in his decision that “Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary.”
The 160-year-old law was imposed on India by the British empire as part of a package of laws against public vice. Thursday’s judgment follows 24 years of legal challenges: most recently, the Delhi high court ruled against section 377 in 2009, but was overturned by the supreme court in 2013.
The breakthrough for lawyers came in August 2017, when the supreme court held that there was a fundamental right to privacy. In an unprecedented move, five judges commented in that judgment that the 2013 section 377 decision was wrong.
Trinidad & Tobago’s high court will also rule this month on whether to decriminalise sex between men, and similar rulings on decriminalising gay sex are awaited in Kenya and Botswana.
Updated x 2 | Kay and Others v United Kingdom (European Court of Human Rights, 21st September) – Read judgment
The European Court of Human Rights has ruled that the UK violated the human rights of short-term tenants of council property whose leases had been terminated. The decision will not, however, prove much help to evicted tenants in similar situations in the future, although it should encourage courts to take their personal circumstances into account when deciding if they should be evicted.
The applicants were occupiers of housing units owned by Lambeth borough council under leases which had been provided by a charitable housing trust. Lambeth brought possession proceedings after the leases were terminated in 1999. The applicants complained that these proceedings breached their right to respect for private and home life under Article 8 (the right to a family life). They were unsuccessful before the domestic courts but the Strasbourg Court found a violation of Article 8, insofar as the applicants had been prevented from raising it as a defence.
The Queen on the Application of Medical Justice v Secretary of State for the Home Department [2011] EWCA Civ 1710 – read judgment
People who make unsuccessful claims to enter or remain in the United Kingdom cannot be removed without being given sufficient time for a lawyer to prepare a proper challenge to their claim. The government has failed in its appeal against the Administrative Court’s finding that government policy unlawfully provided for expedited removal procedures in certain pressing circumstances – for example where there was a risk that the person concerned, if given advanced notification of his removal, might attempt to frustrate those measures of removal. The policy was quashed because it interfered with people’s right of access to a lawyer.
The Home Secretary is responsible for granting or refusing leave to remain in the United Kingdom for those who do not have the right of abode in this country in accordance with the Immigration Rules. It is an important aspect of maintaining immigration control that a credible enforcement process is in force and that those with no right to remain in the United Kingdom are removed from the jurisdiction while not infringing the accepted rights of those about to be removed. Continue reading →
I watched Panorama’s exposé of institutional abuse of adults with learning disabilities at Winterbourne View Hospital with mounting horror. What legal mechanisms were available to prevent abuses like this, or bring justice to victims?
There can be little doubt that the acts of the carers towards the patients were inhuman and degrading, a violation of their Article 3 rights. It is highly questionable whether the establishment fulfilled their rights to privacy and dignity under Article 8, the right to private and family life.
Coalition for Responsible Regulation v. EPA US Federal Court of Appeals, DC, 26 June 2012, read judgment
This week, two big decisions which will have come as a relief to the President. The US Supreme Court did not strike down his healthcare law (judgment here), and, to the subject of this post, neither did the Federal Courts of Appeal in Washington declare invalid key greenhouse gas rules set by the Environmental Protection Agency. This saga is a perfect illustration of how closely law and politics get intertwined in the US.
As I pointed out in my previous post, Massachusetts v. EPA (549 U.S. 497 (2007)). told the EPA that it had a duty to regulate greenhouse gas (GHG) emissions because they were “any air pollutant” within the meaning of the Clean Air Act – as two prior general counsels had repeatedly told it. The EPA (under the previous administration) needed to be taken to the Supreme Court before responding. Thereafter, the EPA, with a new head appointed after Obama’s election, reached an Endangerment Finding, to the effect that GHGs may “reasonably be anticipated to endanger public health or welfare”. In the pellucid prose of this Court,
Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.
Industry and a whole host of states (no prizes for guessing which fossil fuel producing states were in support) sought to challenge these rules.
The conviction of the “Heathrow heist four” at the Old Bailey has raised serious concerns that the historic right to trial by jury may be slipping away.
For the first time in 350 years, the four men were convicted in the Crown Court by way of a trial without a jury. On March 31st each received long prison sentences for their part in the robbery.
Henry Porter, writing in The Guardian, has severely criticised the reforms which allowed the trial to proceed with no jury. He says:
A profound change has occurred in Britain where it is now possible for counsels and a judge to decide the fate of defendants without the involvement of 12 ordinary citizens – the fundamental guarantee against arbitrary state punishment represented so well by the use of the star chamber under King Charles I.
The right to trial by jury has been steadily eroded in recent years. Civil courts now operate almost entirely without juries, as do some lower-level criminal courts such as Magistrates’ courts, which are only able to impose custodial sentences up to a maximum length of one year.
Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed) [2012] UKSIAC 15/2005_2 – read judgment
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.
Earlier today, Abu Qatada was released from Long Lartin prison following his successful appeal before the Special Immigration Appeal’s Commission (SIAC). Qatada was challenging the decision to deport him to Jordan, where he faces a retrial for alleged terrorism offences.
For most of the last decade, Abu Qatada has been detained pending deportation to his home country. At his two original trials, he was convicted in absentia and sentenced to full life imprisonment with 15 years’ hard labour.
Charlotte Bellamy brings you the latest human rights news
The death knell has tolled on another of Grayling’s policies from his ill-fated tenure as Justice Secretary. The controversial criminal courts charge, which has seen over 50 magistrates resign since its imposition in April, is to join the jettisoned ranks of the prisons contract with Saudi Arabia, the prisoner book ban and plans for a super-sized child prison.
Criticised as a “tax on justice” which encouraged defendants to plead guilty, the charges ranged from £150 (for a guilty plea to a summary only offence) to £1,200 (conviction at trial for indictment). The charge did not take into account the means of the defendant, leading to a plethora of desperate situations including one homeless shoplifter ordered to pay £900 despite “not being able to afford to feed himself” and a £150 levy imposed on another for stealing a can of Redbull worth 99p.
The decision was announced by Gove at the annual meeting of the Magistrates Association last week, where he described the policy as “falling short of its honourable intentions”. His Ministerial Statement suggests he is standing by its “underlying principle”, that “those who break the law should make a contribution towards seeing justice done”. The courts charge came in addition to fines, victim surcharges, compensation orders and prosecution costs, a system Gove concedes is “complex and confusing”, and the whole panoply of which he has now announced a full review.
The Chair of the Justice Committee Bob Neill MP welcomed the change which was so swiftly made after the unequivocally damning report produced by the Committee in November. The Howard League for Penal Reform, who led an uncompromising campaign against the charge, has described Gove’s announcement as a “victory for justice”.
Is the “underlying principle” of which Gove speaks about making “those who break the law” contribute towards seeing justice done? One legal commentator writing in the Solicitors Journal suggests that the abolition of the charge is in fact a Trojan Horse disguising a trade-off for plans to impose in its place a 1 per cent levy on the turnover of the top 100 corporate City law firms – an idea first floated by Gove at a speech to the Legatum Institute in June – the ultimate aim of which is perhaps to remove the criminal justice system from the ambit of public funding completely, with lawyers themselves footing the bill. Continue reading →
In R (on the application of Gina Miller and Ors) v The Secretary of State for the European Union, the High Court, in a masterly exposition of the principles of constitutional law and statutory interpretation, held that the Secretary of State did not have the power under the Crown’s prerogative to give notice under Article 50 and thereby begin the process under which the United Kingdom will leave the European Union.
Sir Oliver Cromwell said in 1644 “We study the glory of God, and the honour and liberty of parliament, for which we unanimously fight, without seeking our own interests… I profess I could never satisfy myself on the justness of this war, but from the authority of the parliament to maintain itself in its rights; and in this cause I hope to prove myself an honest man and single-hearted.” I suspect that Cromwell will be reading the judgment delivered today and chuckling (if he ever would do something so frivolous) with pleasure at the sight of the High Court roundly defending the sovereignty of Parliament. Continue reading →
Cases T-439/10 and T-440/10, Fulmen & Mahmoudian v. Council of the European Union, read judgment
Fulmen, as many of you will know, means thunderbolt in Latin. So it must have seemed when this Iranian company had its assets frozen. This case is a good example of how general principles of European law were applied to annul measures taken against these Iranian applicants. The measures were part of EU policy to apply pressure on Iran to end nuclear proliferation. Fulmen was said to have supplied electrical equipment on the Qom/Fordoo nuclear site and Mr Mahmoudian is a director of Fulmen. Hence they were both listed in Council Decision 2010/413/CFSP. The upshot was that all of their assets were frozen by the EU.
Esegbona v Kings College Hospital [2019] EWHC 77 (QB)
Twenty years on from Bournewood, the case that prompted the introduction of DoLS, and as the Mental Capacity Amendment Bill tolls the death knell for DoLS and introduces as their replacement Liberty Protection Safeguards, the High Court (HHJ Coe QC sitting as a High Court Judge) has given a sharp reminder of the human and financial cost of what happens when a hospital fails properly to discharge its obligations under the Mental Capacity Act and as a result, falsely imprisons (in a hospital) a patient.
This blog is the first covering the series of three important judgments given on Tuesday by the Supreme Court on issues arising out of the War on Terror and the United Kingdom’s interventions in Iraq and Afghanistan. Belhaj and another v Straw and others) and Rahmatullah (No 1) v Ministry of Defence and another [2017] UKSC 3 involved the alleged complicity of United Kingdom officials in allegedly tortious acts of the UK or other states overseas. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault.
The Supreme Court unanimously dismissed the Government’s appeals and ruled that the doctrine of state immunity was no bar to the claims, and that the Government and the various officials sued had not, on the assumed facts, shown any entitlement to rely on the doctrine of foreign act of state so as to defeat the claims brought against them.
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
This week we have some interesting updates and speculation on the latest twist in the tale of Julian Assange, more commentary on the Justice and Security Bill and on David Anderson QC’s report on UK terrorism law. Across the pond, President Obama had a particularly good week in the courts. Finally, the results are in: the UK’s next Strasbourg judge will be Paul Mahoney.
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Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed) [2012] UKSIAC 15/2005_2 – 
This blog is the first covering the series of three important judgments given on Tuesday by the Supreme Court on issues arising out of the War on Terror and the United Kingdom’s interventions in Iraq and Afghanistan. 
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