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Jermaine Baker was shot dead in December 2015. Image: The Guardian
The Court of Appeal has delivered a judgment in R (Officer W80) v Director General of the Independent Officer for Police Conduct[2020] EWCA Civ 1301 regarding the applicable conduct standard and provisions governing police in cases of use of force.
The Court ruled against the police officer W80, holding that his honest, but mistaken, belief that his life was being threatened could be examined for reasonableness in the context of disciplinary proceedings. Accordingly, the Independent Office for Police Conduct (IOPC) was justified in concluding that it was open to a disciplinary panel to make a finding of misconduct if W80’s belief was found to be unreasonable.
In 2015, W80 shot dead 28-year old Jermaine Baker. He challenged the IOPC’s decision to bring disciplinary proceedings for gross misconduct in using excessive force against him and to direct the Metropolitan Police Commissioner (Commissioner) to give effect to such recommendation after the Commissioner rejected it.
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 Melinda Padron
In the news:
Remembering 9/11, 10 years on
Last week the Law and Lawyers blog posted a retrospective of 9/11 and the consequent events of legal significance that impacted, and continue to impact, on the UK. The Human Rights in Ireland blog discussed the Terrorism Prevention and Investigation Measures legislation in the UK, whilst Adam Wagner took the unusual step of sharing his personal reflections on 9/11. Dapo Akande links his post on the EJIL Talk blog to an interview in a BBC Radio programme where he discussed, amongst other things, whether the Geneva Conventions apply to the so called “war on terror”.
This afternoon, health secretary Matt Hancock made a statement in the Commons updating the house on the government’s response to the crisis.
The health secretary announced that anyone in the UK aged five and over who has coronavirus symptoms will be eligible for a test. From today, recognised symptoms include the loss of smell and taste, as well a persistent cough and a high temperature. Hancock confirmed for the first time that the government has recruited over 21,000 contact tracers, including 7,500 health care professionals, to manually trace and get in contact with anyone who has tested positive.
In addition, he offered a degree of clarification in relation to the government’s new contact tracing app. The function of the app is to alert people of the need to self-isolate if they have come into proximity with an individual who reported coronavirus symptoms.
It’s time for 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, updated each day, can be found here.
by Melinda Padron
In the news
The government announced that a commission would be set up to look into whether the government should bring in a bill of rights in light of all the controversy surrounding the ECtHR. The commission is reported to be composed of experts such as Lord Lester, Helena Kennedy QC and Martin Howe QC, and its merits are already being called into question.
There have been two strong reminders of the importance of maintaining compliance with and membership to the European Court of Human Rights: Aidan O’Neill QC wrote an excellent piece questioning the legal merits of some of Dr Pinto-Duschnisky‘s proposals in his report Bringing Rights back home: making human rights compatible with parliamentary democracy in the UK; while Sir Konrad Schiemann, judge of the Court of Justice of the European Union, made a strong case that by abiding by its decisions, the UK would be serving the greater good of stability amongst its members.
TLT and others v Secretary of State for the Home Department [2016] EWHC 2217 (QB)
How do you quantify damages for data breaches? Is the distress caused by an accidental data breach comparable to phone-hacking? Should damages for distress be equivalent to damages for psychiatric injuries?
In October 2013, the Home Office published statistics on its family returns process, the means by which children with no right to remain in the UK are sent back to their country of origin. In addition to anonymised statistics uploaded onto the government website, the Home Office mistakenly uploaded the spreadsheet of raw data on which those statistics were based. That spreadsheet included personal details such as names and rough geographical locations of applicants for asylum or leave to remain, though not their addresses. The data was online for 13 days before being removed, but a number of IP addresses in the UK and abroad visited the relevant web page. Those concerned were notified, and brought claims under the Data Protection Act 1998 and the common law tort of misuse of private information.
As far as privacy breaches go, this appears less sinister than having the contents of your private telephone conversations splashed across the front pages. But consider the effect on these individuals at a time when their residence status is uncertain. Taking one example, an Iranian man – referred to as TLT – had applied for leave to remain with his family. They had been told that a member of their family had been detained in Iran and questioned about them. They reasonably believed that the Iranian authorities would have looked at the published details and, as a result, they feared for their lives if they were returned to Iran, their security in the UK and their extended family in Iran. A significant issue is how to quantify ‘distress’ of that nature for the purposes of claims brought.
Judgment
It was not in dispute that the inadvertent publication of the information constituted misuse of private information and a breach of the first, second and seventh principles of the Data Protection Act. Neither was it in dispute that, following the Court of Appeal decision in Vidal-Hall v Google Inc [2015] EWCA Civ 311, a claimant can recover damages for ‘distress’ for such a breach.
But Mitting J’s judgment is interesting for two reasons. First, it tackled four questions which will provide guidance for similar claims in the future. Secondly, and perhaps more controversially, he considered the quantification of damages for individual breaches in this new and developing area of law.
Can individuals who were not named in the data, but who were identifiable as family members, recover?
Simply, yes. Given that the data related to family asylum or leave to remain applications, Mitting J found that anyone with knowledge of the family would be able to identify the children and other family members from the lead applicant.
Is there a level of distress which is below the threshold for the recovery of damages?
Again, and perhaps unsurprisingly, yes: the de minimis threshold which applies in personal injury cases also applies to data breaches.
Should the courts take guidance from the damages awards in the phone-hacking cases – or, as Mitting J referred to them, “cases involving deliberate dissemination for gain by media publishers or individuals engaged in that trade, such as Max Clifford” [16]?
Without going into any detail, this idea was dismissed by Mitting J. The distress described by the claimants was comparable to a psychiatric injury suffered as a result of an actionable wrong.
Can you recover damages for the loss of the right to control private information?
Yes – a claimant can recover for the loss of control of personal and confidential information but there is no separate and additional award. Rather, the judge takes it into account when making an award for distress.
Damages awards and Gulati
Mitting J made awards ranging from £2,500 to £12,500 for each claimant, using psychiatric and psychological damage cases as guideline comparators after carefully assessing the evidence of the applicants and the distress caused by the data breaches. In Gulati v MGN [2015] EWCA Civ 1291 – one of the phone-hacking cases – the Court of Appeal affirmed the principle that damages for non-pecuniary loss for the misuse of private information should have some “reasonable relationship” with damages for personal injury. Arden LJ explained the reason for this [61]:
“if there is no such consideration or relationship, the reasonable observer may doubt the logic of the law or form the view that the law places a higher value on a person’s right to privacy than it does on (say) a person’s lifelong disability as a result of another’s negligence, and this would bring the law into disrepute and diminish public confidence in the impartiality of the legal system.”
However, this rationale also undermines the very basis on which Mitting J made awards. A claimant in a psychiatric personal injury case must demonstrate that they have suffered a recognised psychiatric injury; simple distress is not sufficient. The awards in TLT take into account the loss of control of private information, but are predominantly awards for distress. None of the individuals were shown to have suffered a recognised psychiatric injury as a consequence of the publication of their details, yet their damages awards were made by comparison to those for recognised and diagnosed psychiatric injury.
In seeking consistency, this judgment sits uncomfortably with psychiatric damage cases. Was Arden LJ’s warning prophetic? If Mitting J’s approach is followed in the future, will the reasonable observer form the view that the law places a higher value on a person’s right to privacy than a lifelong disability?
Oliver Sanders and Michael Deacon of One Crown Office Row acted for the Defendants in this case. This blog post was written independently by Gideon Barth.
Protesters outside the Marie Stopes clinic in Ealing have been told they must stay 100m from the building
In the News
Rumours of a coming parliamentary coup to avoid a no-deal outcome rumble on, prompting the usual range of responses.
Speaking at the G7 summit in Biarritz on Sunday, Boris Johnson stated that Britain can ‘easily cope’ with a no-deal Brexit. The Prime Minister ascribed sole responsibility for whether or not Britain crashed out of the European Union on 31 October to ‘our EU friends and partners’, while Brussels officials asserted that it was ‘squarely and firmly’ up to Britain to find a solution to the Irish border issue. His comments come after a week in which Angela Merkel and Emmanuel Macron indicated their unwillingness to countenance reopening the withdrawal agreement, while Donald Trump promised a ‘very big trade deal’ between the United Kingdom and the United States once the country had freed itself from the ‘anchor’ of the EU.
Writing in the Times, Cambridge historian Robert Tombs argues that those who consider parliamentary resistance a legitimate expression of its sovereignty would ‘do untold damage to the institution they claim to defend’ by preventing the government from ‘[carrying] out a policy approved by the electorate’. In the Guardian, Heather Stewart and Rowena Mason covered the opposing view, outlining the key points in the six-page document prepared for Jeremy Corbyn by the shadow attorney general, Shami Chakrabarti. The advice includes an assertion that Boris Johnson would be committing the ‘gravest abuse of power and attack on UK constitutional principle in living memory’ if he shuts down parliament to help force through a no-deal Brexit.
Earlier this week, the archbishop of Canterbury sparked criticism by Brexiteers, including former Conservative party leader Iain Duncan Smith, for reportedly meeting MPs with a view to chairing citizens’ assemblies to stop a no-deal departure from the EU. Today, Jeremy Corbyn met with the leaders of the SNP, the Liberal Democrats, Plaid Cymru, the Green party and the Independent Group for Change and issued a joint statement agreeing to work together to avoid ‘a disastrous no-deal exit’.
By a narrow 4-3 majority, the Supreme Court has ruled in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that the extent of GCHQ’s powers to hack into internet services should be subject to judicial review, despite a powerfully-drawn ‘ouster clause’ which sought to prevent the decisions of the Investigatory Powers Tribunal from being questioned by a court.
Lord Carnwarth, who delivered the majority judgement, noted the ‘obvious parallel’ with the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Turning to the ouster clause in the present case, he considered that ‘a more explicit formulation’ might have ousted the jurisdiction of the High Court to consider a challenge to a decision by the IPT, but that, such as it was, the clause was not sufficiently clear to do so.
Lord Carnwarth also stated that: ‘It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.’ Although it was not necessary to decide on the general lawfulness of ouster clauses, he saw ‘a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law.’ Lord Lloyd-Jones, another of the Judges in the majority, remained neutral on this statement.
Lord Carnwarth’s ‘rule of law’ argument was echoed by Caroline Wilson Palow, Privacy International’s general counsel, and Simon Creighton, of Bhatt Murphy Solicitors, which acted for Privacy International. Megan Goulding, a lawyer at Liberty, which supported Privacy International, stated that the ouster clause was ‘not just undemocratic, but a sinister attempt to reduce the safeguards that protect our rights.’
In contrast, Professor Richard Ekins, a Tutorial Fellow in constitutional law at Oxford University, has stated that the ruling ‘violated the sovereignty of parliament.’ Ekins credited the three dissenting judges for their willingness to ‘[give] effect to parliament’s authoritative choice’ to limit judicial review by creating a specialist tribunal to consider complaints against the intelligence services.
In the News
The foreign secretary, Jeremy Hunt, has appointed Rita French, formerly his principal private secretary, to a post as the UK’s first human rights ambassador. Hunt put the appointment implicitly in the context of Brexit, stating that ‘as the UK enters a new chapter in its history’ he will ensure human rights are not forgotten in the rush to secure desperately needed free trade deals. Shami Chakrabarti, shadow attorney general, made her skepticism clear: ‘Rita French’s task will be an uphill struggle in a party that has consistently campaigned to scrap human rights instruments and cosied up to every despot in the pursuit of trade.’
The appointment came shortly after Human Rights Watch published a 115-page report condemning the UK government for breaching its duty to protect citizens from hunger by pursuing ‘cruel and harmful policies’ with little regard for children living in poverty. While a government spokesperson dismissed the findings, school staff and food bank volunteers confirmed that the report tallied with their experiences.
On Wednesday, the defence secretary, Penny Mordaunt, announced ‘a statutory presumption against prosecution’ for alleged offences committed in the course of duty more than ten years ago, covering wars in Iraq and Afghanistan. Following the announcement, Mordaunt went further, stating that she would like to see the proposed exemption extended to period of the Troubles in Ireland. Mordaunt’s comments were quickly met with criticism from human rights groups, a string of Conservative MPs, Ireland’s deputy prime minister Simon Coveney, and Sinn Féinn’s deputy leader Michelle O’Neill. An editorial in The Independent argued that the move would set human rights back by decades, allowing ‘the UK [to] opt in and out of the ECHR, depending on whether it is at war,’ while Amnesty UK’s campaign manager for Northern Ireland argues that the move undermines victims’ ‘fundamental rights to justice.’
In Other News
Ukraine responded angrily after ministers of the Council of Europe voted overwhelmingly in favour of allowing Russia to ‘participate on an equal basis’ in the council’s committee of ministers and parliamentary assembly, five years after the country was stripped of its voting rights over the seizure of Crimea. Ukraine’s envoy to the Council stated that the decision was not ‘diplomacy’ but rather ‘a surrender’.
US President Donald Trump has outlined his ‘strongly pro-life’ views on abortion days after Alabama passed a law banning abortion in almost all cases. In a series of tweets, Mr Trump stated that he was against abortion except in cases of rape, incest or ‘protecting the life of the mother’. While Republicans eager to overturn the 1973 Roe v Wade ruling welcome the ban and Trump’s approbation of it, Democratic presidential candidate Elizabeth Warren characterised the prohibition as ‘dangerous and exceptionally cruel’, and Human Rights Watch described the legislation as ‘a shocking abdication of responsibility by Alabama law makers’.
In the Washington Times, Neil Bush called for the release of Marsha Lazareva, a prominent Russian businesswoman imprisoned in Kuwait since May 2018 after being found guilty of embezzling 17 million dinars from the Kuwaiti Port Authority. Her latest hearing has been delayed until 9 June, after the judge recused himself unexpectedly. The manner in which Lazareva was tried and sentenced has been criticised by a number of human rights groups and diplomatic figures, including the former US Representative Ed Royce. Louis Freeh, a former judge and Director of the FBI, expressed concern for Lazareva’s health and wellbeing, and called the refusal of the Kuwaiti authorities to release her on a $33 million cash bail something he had ‘never heard of’ in his years as a judge and advocate. Lord Carlile of Berriew QC, senior counsel for Lazareva, has said that the ‘expert auditor’ on whose testimony much of the evidence relied has since been charged with the forgery of the three documents on which he depended during the case.
In the Courts
R (DA & Ors) v Secretary of State for Work and Pensions; R (DS & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21: The Supreme Court considered whether the revised benefit cap, introduced by the Welfare Reform and Work Act 2016, s8, to lone parents with children under two years old (i) unlawfully discriminates against parents and/or their children, contrary to ECHR Articles 14 and 8 and the UN Convention on the Rights of the Child Article 3, and/or (ii) is irrelevant. The court concluded, by a majority of 5-2, that the rule engaged ECHR Article 8, but could be justified because it was not manifestly without reasonable foundation. Lady Hale and Lord Kerr, dissenting, considered that a fair balance had not been struck.
Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818: The Court of Appeal dismissed an appeal for wrongful dismissal by a nursing sister employed by the Trust. The sister was a ‘committed Christian’ fired for breaching an undertaking not to have inappropriate religious discussion with patients. One of the patients who lodged a complain was told by Mrs Kuteh that if he prayed to God he would have a better chance of surviving a major surgery for bowel cancer which he was about to undergo. ‘Even having regard to the importance of the right to freedom of religion,’ the court concluded that the Employment Tribunal’s decision was ‘plainly correct’, and the Trust’s decision to dismiss Ms Kuteh for misconduct ‘fell within the reasonable band of responses’ in this case.
The Court of Appeal in Re D has overturned final care and placement orders made at an Issues Resolution Hearing (“IRH”), stating that judges must give clear, reasoned findings on the threshold criteria under section 31(2) Children Act 1989 (“CA 1989”), even where proceedings are uncontested or parents are absent.
In delivering the judgment, Cobb LJ, with whom Baker LJ and Miles LJ agreed, criticised the short form reasoning used by the Family Court and stressed the need for transparent judicial decision-making when the State intervenes in family life under Article 8 of the European Convention on Human Rights (“ECHR”).
To what extent does the law afford protection to couples looking to foster children, in circumstances where that couple possesses (and vocalises) strong religious beliefs? This was the issue for consideration before Turner J, who heard this appeal in the King’s Bench Division of the High Court. Judgment was handed down on 18 November 2025.
R (on the application of Hannah McClure and Joshua Moos) v The Commissioner of Police of the Metropolis [2012] EWCA Civ 12 – Read judgment
The Metropolitan Police has succeeded in its appeal against a Divisional Court ruling (see previous post) that the use of crowd control measures – in this case, containment or “kettling” – against Climate Camp protesters did not constitute “lawful police operations”.
In reaching its decision, the Court of Appeal considered three issues: (i) whether the Divisional Court adopted the wrong approach to the question of whether a breach of the peace was imminent, (ii) whether Chief Superintendent Mr. Johnson’s apprehension that there was an imminent breach of the peace was reasonable, and (iii) whether, on Mr. Johnson’s own evidence, he should not have ordered containment of the Climate Camp.
G v E & Ors [2011] EWCA Civ 939 – Read judgment – 1COR’s Guy Mansfield QC appeared for the Respondent. He is not the author of this post.
Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 – Read judgment
The general rule in civil law cases is that the loser pays the winner’s legal costs, even if the case settles before trial. As with all general rules, there are plenty of exceptions, and many relate to public authorities. Two of those exceptions have just been chipped away at by the Court of Appeal.
Two important judgments increasing the likelihood that local authorities will have to pay out costs emerged the usual last-minute glut before the court term ended on Friday. The first concerned costs in the Court of Protection when an authority has unlawfully deprived a person of their liberty. The second was about costs in immigration judicial review claims which had settled following consent orders.
At the heart of the case of R (Bailey) v HM Senior Coroner for East London [2025] EWHC 1637 (Admin), a tragedy: the murder of a 14-year-old boy, Jaden Bailey, and the profound grief of his mother. Jaden had been drawn into criminal activity, first in Nottinghamshire, then London. In October 2018 he had been found at a “cuckoo house” in Bournemouth, in possession of cocaine, a mobile phone and £325 in cash. He was brought back to London by the Metropolitan Police, following which an action plan was prepared by the Children’s Social Care Department of the London Borough of Waltham Forest. In November 2018 Jaden was permanently excluded from school after a Snapchat video showed him in possession of an imitation firearm, for which he was arrested and charged, pleading guilty. On 8 January 2019 Jaden was riding a moped in Leyton when he was hit by a car; the occupants of the car got out and stabbed Jaden. He died at the scene.
The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council (Interested Party) [2013] EWCA Civ 673, 276, 14 June 2013 read judgment
This case came before the Court of Appeal earlier this year (read judgment of April 2013, and Rosalind English’s earlier post giving the background), when the landowner Port’s attempts to exclude members of the public from West Beach, Newhaven were unsuccessful. They were defeated by the beach being registered as a “village green” – improbable though that description may sound to those not versed in this arcane bit of the law. The lawfulness of this registration in turn depended on it being established that members of the public had used the beach for at least 20 years “as of right” – i.e. “without force, without stealth and without permission” – an age-old lawyers’ mantra that has mercifully been translated from the original Latin in recent times.
But the earlier hearing before the CA left over for determination one issue, the Port’s contention that they had been deprived of property rights in breach of Article 1 of Protocol 1 (A1P1) of ECHR, because of a retrospective change of the law adverse to them. This is what last week’s decision is about.
Mr De A is a Portuguese national. He lived in the UK from 1998 to 2001 and from 2008 to date. He worked during the first period and for a year after his return. Mr De A had contracted HIV and AIDS. His health deteriorated so that he was not able to work. His prognosis in October 2010 was that he had about a year to live. At the time of the first hearing in this case in November 2011, his prognosis was about 6 months.
Burnip v. Birmingham City Council, Trengrove v. Walsall Metropolitan Council, Gorry v. Wiltshire Council [2012] EWCA Civ 629 – read judgment
In the same week that the Secretary of State for Work and Pensions, Iain Duncan-Smith, announced his intention to implement sweeping reforms of the current system of disability benefits, the Court of Appeal has ruled that housing benefit rules were discriminatory against disabled people, in breach of Article 14 read with Article 1 Protocol 1 of the European Convention.
Mr Duncan-Smith has already faced opposition to his reform proposals but has made it clear that he is willing to tackle this controversial issue. However, this week’s ruling is a timely reminder that social security law is extremely complex and that the Government will have to tread very carefully to avoid unwittingly causing further instances of unlawful discrimination.
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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 
R (on the application of Hannah McClure and Joshua Moos) v The Commissioner of Police of the Metropolis [2012] EWCA Civ 12 – 
G v E & Ors [2011] EWCA Civ 939 – 
De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin) – 
Burnip v. Birmingham City Council, Trengrove v. Walsall Metropolitan Council, Gorry v. Wiltshire Council [2012] EWCA Civ 629 – 
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