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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoners/page/34/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
The UK’s first transgender judge, Victoria McCloud, is bringing an action against the UK to the European Court of Human Rights over the Supreme Court’s ruling on biological sex in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16. Lord Hodge, in this case, determined that the “unanimous decision of this court is that the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex”. McCloud – one of at least two individuals who had unsuccessfully sought leave to intervene in the proceedings – is bringing the action on grounds that her Article 6 rights, which guarantee the right to a fair trial, have been infringed. She argues that the Supreme Court refused to hear her evidence about the “impact of those trans people affected by the judgement” and failed to “give any reasons” for doing so. Further, in her submission, the court had not considered human rights arguments that “would have been put by trans people” leaving her with the “nonsense” of being “two sexes at once”. In contrast, the court had heard from “protest groups speaking on behalf of women” in the case. McCloud is now seeking a declaration that “the actions of the UK government and the Supreme court judgement violate her fundamental human rights”.
In an amendment to the Border, Security, Asylum and Immigration Bill which is being considered by Parliament, the Home Office seeks to ban foreign sex offenders from claiming asylum in the UK. The amendment would affect anyone who qualifies for sex offender status. Under Article 1F of the Refugee Convention 1951 countries are entitled to refuse asylum to terrorists, war criminals and individuals convicted of a particularly serious crime who present a danger to the community. Where a conviction qualifies a foreign national for the sex offenders’ register – regardless of the length of sentence they receive – that will lead to their refugee status being denied, on the basis that they will be presumed to have been convicted of a “particularly serious crime” . The Government has said that they are “toughening [their] approach to border security through stricter enforcement of the rules”, in an attempt to make “Britain’s streets safer”. Specifically, Home Secretary Yvette Cooper has argued the amendment would ensure these “appalling crimes are taken seriously”. Steve Valdez-Symonds, at Amnesty International UK, however, has raised concerns that the Government is “rushing through late-stage amendments” to major legislations meaning that “laws are made without the full scrutiny and care they demand”. In his opinion this is an “irresponsible approach” to lawmaking.
The House of Commons Home Affairs Committee has today published a report, The work of the UK Border Agency (November 2010–March 2011), which accuses the UKBA of effectively creating an amnesty for hundreds of thousands of asylum seekers whose cases have been delayed for years.
The report is not particularly easy to find online – it should be available on the Home Affairs Committee website, but isn’t for some reason. You can download a PDF here, see the previous reports here or read on this page via Scribd.
As has been picked up in media reports, the report concludes that the UKBA’s success in clearing a backlog of around 400,000 to 450,000 unresolved asylum cases has been achieved
through increasing resort to grants of permission to stay… or the parking of cases in a controlled archive, signifying that the applicant cannot be found and the Agency has no idea whether or not the applicant remains in the UK, legally or otherwise.
The seminar had a special significance as the HRA has just celebrated its 10th birthday. Both speakers looked to the future of the act in light of the coming budget cuts and economic austerity policies.
Charlotte Bellamy contemplates the latest human rights happenings
Until recently the Tolpuddle Martyrs peered down from a banner in Westminster Hall in an exhibition celebrating the journey of rights in democratic society over the last 800 years.
The Tolpuddle Martyrs were taken down last month. Meanwhile, the Trade Union Bill has passed through its second reading in the House of Lords. Just before the reading, the Equality and Human Rights Commission released a report on the human rights implications for the Bill, the thrust of which is that its ‘regressive nature’ may cause the UK to fall short of its obligations under the European Convention of Human Rights. Continue reading →
Dominic Raab has resigned as deputy prime minister after a bullying inquiry vindicated a number of civil servants’ claims about his behaviour as a minister in the cabinets of Boris Johnson and Theresa May. The report of Andrew Tolley KC held that Raab’s behaviour constituted an “abuse or misuse of power,” citing instances of an intimidating and discouraging attitude towards the civil servants he worked with. Tolley referred to the ruling of the High Court in the 2021 case concerning the behaviour of Priti Patel towards civil servants, in which it was provided that harassment and bullying through intimidating and insulting behaviour were not consistent with the Ministerial Code. In his resignation letter, Raab said that Tolley’s findings were “flawed and set a dangerous precedent for the conduct of good government … it will encourage spurious complaints against ministers.”
The lawsuit between Dominion Voting Systems and Fox News was settled before trial with a $786.5m pay-out. The voting machines company alleged that Fox news presenters knowingly made false claims that it had rigged the 2020 presidential election result for Biden, while the news corporation framed their defence as a protection of free speech. To win at trial, Dominion’s claims faced a high bar: they would have had to prove that Fox’s statements were made in ‘actual malice,’ meaning either the corporation knowingly made the false statements or acted with reckless disregard for their falsity. Documents released to the public revealed the commercial pressures on executives and presenters to appeal to pro-Trump viewers. Commentators suggest Fox owner Rupert Murdoch wanted to avoid cross-examination of himself and his news stars at trial. The news company still faces a similar lawsuit from voting technology company, Smartmatic, which released a statement claiming that “Fox needed a villain. Without any true villain, defendants invented one.”
Why we should replace ‘revenge porn’ with ‘image based sexual abuse’ and reform the mens rea of the Criminal Justice and Courts Act 2015
The digital world is becoming an increasingly dominant part of daily life. This has been thrown into sharp relief by the current public health crisis, which has seen almost every facet of our lives move online; from socialising, to work, to healthcare, to dating and sex. However, regulation of the digital world is struggling to keep pace with technological change (see the UK Human Rights Blog’s technology section for commentary on this phenomenon). Lawmakers simply cannot keep abreast of the reforms necessary to protect victims from online criminality. One area in which Parliament has made some progress is the sharing of private sexual images, or ‘revenge porn’, as it has come to be known. This article will outline recent developments in the law around sharing of private sexual images; interrogate the terminology used in this area; and suggest reforms to the relevant legislation.
In 2014, the Crown Prosecution Service published guidelines on existing legislation, in an attempt to support convictions for the crime of sharing private sexual images without consent.[1] However, after mounting pressure from campaign groups, the Criminal Justice and Courts Act 2015 (‘the Act’) created the offence of ‘Disclosing private sexual photographs and films with intent to cause distress’, which is punishable by up to two years in prison.[2]
More recently, legislation around sharing private sexual images became the subject of a new campaign, seeking to make the act of threatening to share private sexual images a criminal offence. This campaign was supported by organisations such as Refuge, 44,615 of whose supporters wrote to government ministers requesting a change in the legislation.[3] A reality television star, Zara Mcdermott, added her voice to this campaign in a BBC documentary entitled ‘Zara McDermott: Revenge Porn’.[4] In the documentary, Ms McDermott recounts two instances of having private sexual images shared without her consent. The documentary also covers the harrowing story of Damilya Jossipalenya, who was at university in London when she jumped to her death from the window of her flat. Ms Jossipalenya’s suicide followed a campaign of harassment by her boyfriend, who had threatened to share a video of Ms Jossipalenya with her family in Kazakhstan. This segment of the documentary ends with Ms McDermott explaining why she believes the threat to share private sexual images can be equally as damaging as the act of sharing them.
On 28th of April I wrote up a judgment by Weimar District Court Judge Dettmar against masks and social distancing in schools, and his subsequent handling by the police and District Prosecutor. Judge Dettmar’s decision of the 8th of April was overturned last week and the proceedings were discontinued.
The same court had produced a similar judgment ( 6 OWi 583 Js 200030/21) in a “Corona trial” on the 15th of March 2021 published on the 6th of May 2021. This was a ruling from a judge with a different jurisdiction in the same court. Judge Güricke, unlike Judge Dettmar, is not a family judge. Part of his jurisdiction concerns the validity of subordinate legislation, particularly ordinances banning certain behaviour, on pain of a fine or even a prison sentence. All administrative offences that are not traffic offences fall into this jurisdiction; and the Corona fine cases fall into the Special Administrative Offences division of which Judge Güricke is part. This, his latest judgment, examines in great depth what the government actually knew and should have known about the situation prevailing when the government decided on lockdown in March 2020.
It is well worth reading. Despite the fact that the German media has barely picked up on it, it is being commented upon and read in legal circles.
Judge Güricke’s ruling on the constitutional point is final. The public prosecutor’s office have not been able to appeal because the Thuringian Constitutional Court handed down a ruling on 1 March 2021 that all Thuringian Corona decrees, starting with the first one issued in March 2020 until the beginning of June 2020, were unlawful and null and void due to an error in formalities.
Campaigners have warned that a loophole allowing children aged 16 or 17 to get married with their parents’ consent is enabling forced child marriages to take place across England. Current laws against forced marriage to do not specifically protect children, and there are no laws in the UK to prevent religious or customary child marriages. The organisation Girls Not Brides UK, who sent a letter to the Prime Minister warning of the impact of this loophole last week, have suggested that child marriages disproportionately affect girls, and often lead to fewer educational and employment opportunities and a higher risk of domestic violence. The government’s Forced Marriage Unit, which collects data on cases of forced marriage, shows that more than a quarter of cases involve children. The Conservative MP Pauline Latham is currently promoting a bill in Parliament aimed at criminalising child marriage completely.
The Coalition Government promised in the first days of its rule to “reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion“. This policy is now in play and appears to be making quick progress.
The Coalition’s Program for Government contains a long shopping list of civil liberties promises. Some are specific; scrapping ID cards, restricting DNA retention by police and reviewing libel laws. Some more vague, such as the Freedom / Great Repeal Bill, for which Deputy Prime Minister has just launched an online public consultation. As we posted last week, even the Lord Chief Justice is getting in on the act.
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Graeme Hall
In the news
Riots
Theft, assault, arson and death: the result of riots not seen in the UK in recent memory. Despite the shocking scenes, communities have united and even the courts have worked 24 hours a day, seven days a week to process those charged. Unsurprisingly, the blawgosphere has been prolific in its coverage, and Adam Wagner provides a summary of useful articles here.
The Economist has provided a useful analysis of the Coalition Government’s proposed policies on civil liberties.
The article highlights the fact that the policies detailed may not represent the transformative change which Nick Clegg suggested in his reform speech, but rather “uncontroversial quick wins” which will be dwarfed in policy terms by the incoming government’s policing and immigration policies:
The disagreements can probably be haggled away, with the Lib Dems getting their way (eventually) on human rights in return for agreeing to control orders. Coalition government is such a novel and interesting thing that almost any fudge or u-turn can be passed off as a natural product of the “new politics”, at least for now. Continue reading →
This week’s Round-up is brought to you by Hannah Lynes.
In the news
Call from legal community for urgent action on refugee crisis
More than 300 lawyers have signed a statement denouncing the Government’s response to the Syrian refugee crisis as “deeply inadequate”.
The document, whose signatories include former President of the Supreme Court, Lord Phillips, three former Law Lords and over 100 Queen’s Counsel, describes Prime Minister David Cameron’s offer to resettle 20,000 Syrian refugees over 5 years as “too low, too slow and too narrow.” Continue reading →
The British Academy have today published a very interesting new report by Colm O’Cinneide considering the workings of the UK human rights law, the relationship between the ECHR, UK courts and the Parliament and the potential effect of a bill of rights.
The report (full report / executive summary) had a prestigious steering committee, including Professor Vernon Bognodor, who knows a bit about the British constitution, and Professor Conor Gearty. The conclusions represent – at least in my experience – the mainstream view amongst legal academics, lawyers and indeed judges on the human rights system. In summary, and with apologies if this is an over-simplification of the report’s detailed findings:
We posted earlier this week on whether those who were locked out from voting in the 2010 General Election can claim for compensation under the Human Rights Act 1998 (read our post here). Liberty are asking spurned voters to contact them with a view to further legal action. But Joshua Rozenberg argues in this morning’s Law Society Gazette that those voters will face significant difficulties finding a legal remedy.
Our post concentrated on potential remedies under the Human Rights Act 1998, highlighting that the European Court of Human Rights has been reluctant to award monetary compensation in the past. The European Court has generally held that the “just satisfaction” remedy under human rights law was fulfilled by the fact that criticism from the court would lead to a change in the respective State’s voting system. As such, financial compensation to reflect the breach of the voters’ rights was not seperately awarded. It should be noted, however, that many of the recent cases involved prisoners and ex-convicts being barred from voting. We concluded that
Jack Straw, the Justice Secretary, has already said that the problem “shows a lack of foresight and preparation”, so it seems unlikely that voters will be left without a remedy, and that may come in the form of compensation probably by way of an out of court settlement… However, how much that will be is by no means clear, and it may be difficult to prove in practice that a person was prevented from voting as a direct result of administrative difficulties.
What about trying to get the election re-run in a constituency where a lot of people were unable to vote? A dissatisfied voter may present a petition which may be tried by an election court. But there is little chance of a second poll unless the number of people who were locked out in a particular constituency is more than the winning candidate’s majority. Even then, there might need to be some evidence that the non-voters were likely to have supported the candidate who came second rather than, as seems more likely, that they would have voted in proportion to the constituency as a whole.
That is because section 23 of the Representation of the People Act 1983 says that ‘no parliamentary election shall be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty… if… the election was so conducted as to be substantially in accordance with the law as to elections and the act or omission did not affect its result’.
It will be clearly be difficult for spurned voters to bring claims. However, there is a strong duty imposed by human rights law on the State to conduct free and fair elections. Further, it seems that at least some of the constituencies where voters were turned away were ultimately decided by a small majority. This is unsurprising, as one would expect turnout to be higher in places where people expect the vote to be close. So, the uphill climb which spurned voters face may still lead to some kind of legal remedy.
On Monday last week, the government published its long-awaited white paper on online harms. The paper states that the the government will establish a new statutory duty of care on these companies to ‘take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services’. A new regulator will have formidable powers and sanctions at its disposal to oversee and enforce the fulfilment of this duty.
The document was praised by John Naughton in the Guardian as a global first: the first time the government of a major country has attempted to regulate social media companies. He celebrates the paper’s ‘flexible and, at least to some extent, future-proof’ approach as a savvy first step on the road to online regulation.
Conversely, writing in The Times, Greg Hurst criticised the paper for ducking key questions and deferring decision on controversial decisions, characterising it as ‘an important tactical victory’ for social media platforms eager to evade tighter control. In particular, he noted the paper’s insistence that the regulator’s focus should be on ‘on protecting users from harm, not judging what is true or not’, a distinction he called ‘at best hard to maintain and, at worst, unsustainable.’
Commentators across the political spectrum noted that the paper’s implications for free speech were a source of tension and alarm. The paper identifies disinformation or ‘fake news’ as one of many online harms, and says that social media platforms will be expected to use fact-checking services and take action against disseminators of misinformation. The Spectator’s Toby Young states that the proposals pose ‘an unprecedented threat to free speech and could easily be used to impose a censorious code of conduct on newspapers and magazines’; in The Guardian, Alex Hern warned that the measures might prove ‘dangerous’ by ‘creating a regulator without the power to prevent the worst abuse, but with just enough power to scare away the best innovations.’
The intersection of online activity with freedom of expression was also brought into focus by the expulsion of WikiLeaks founder Julian Assange from the Ecuadorean embassy on Thursday. Mr Assange faces charges of sexual assault and criminal theft of US state secrets, and the possibility of a US prison sentence, after Ecuador revoked his asylum and allowed officers from Scotland Yard to remove him from the premises.
A leading article in the Sunday Times argued that Mr Assange’s fate should be left to the courts. Elsewhere, however, Ed Pilkington focused on the indictment’s ‘potentially devastating effect on the basic acts of journalism’. The attitude of many commentators and advocacy groups can be summed up in these words, from a statement by the Freedom of the Press Foundation: ‘Whether or not you like Assange, the charge against him is a serious press freedom threat and should be vigorously protested.’
In Other News
On Thursday, Omar al-Bashir, the military officer who took power in Sudan in 1989, was overthrown. Mr Bashir is the subject of an international arrest warrant issued by the International Criminal Court (ICC), which accuses him of organising war crimes and crimes against humanity in Sudan’s western Darfur region. While the Sudanese people have celebrated the toppling of a regime that has overseen decades of brutal repression and a desperate economic crisis, it remains unclear whether the generals behind the military coup intend to hand power over to civilian rule.
In a decision described as a ‘devastating blow for victims’, the ICC has rejected a request to investigate war crimes and crimes against humanity in Afghanistan, citing a lack of cooperation from the US, Afghan authorities and the Taliban.
In the Courts
Miller and Others v The United Kingdom [2019] ECHR 285 (11 April 2019): The applicants complained that under Article 3 of Protocol No. 1 to the Convention that as convicted prisoners in detention they had been subject to a blanket ban on voting in elections. The ECHR unanimously declared the applications admissible, and held that the finding of a violation alone was sufficient satisfaction for the applicants.
Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) [2019] UKSC 20: The Supreme Court heard a procedural appeal about the jurisdiction of the English courts in relation to a group tort claim. The claimants (the respondents to this appeal) are approximately 1,826 Zambian citizens who allege their health and farming activities have been damaged by toxic emissions from the Nchanga Copper Mine into the waterways upon which they rely for drinking water and crop irrigation. The United Nations has recognised access to clean drinking water as an essential human right; this case also engages Article 6 (the right to a fair trial), Article 1 (the right to the peaceful enjoyment of one’s own property) and potentially Article 2 (the right to life). The court found that England was not the ‘proper place’ for the proceedings. However, since there was a real risk that substantial justice would not be obtainable in a more appropriate foreign jurisdiction, namely Zambia, this finding was academic.
Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661: The Court of Appeal heard two separate appeals brought by the Secretary of State against decisions of the Upper Tribunal, which found that the public interest did not require the removal of either Respondent, on the ground of Article 8 (the right to respect for family life). The court found that AB, a father who saw his son three times a week to assist with homework, had a ‘genuine and subsisting relationship’. AO, a father who was only permitted ‘indirect contact’ with his son, did not. The Secretary of State’s appeal was dismissed in the case of AB and allowed in the case of AO.
On the UKHRB:
Jeremy Hyam QC encourages the GMC and the medical profession to reflect as Dr Bawa Garba, a paediatrician convicted of gross negligence manslaughter in November 2015, returns to work.
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The House of Commons Home Affairs Committee has today published a report, 
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be 
The British Academy have today published a very interesting new report by 
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