Together with anti-racism protests sparked by the death of George Floyd, the coronavirus pandemic has continued to dominate the news. Two recently published reports have highlighted flaws in the government’s response in relation to the provision of social security and domestic abuse support during the crisis.
The pandemic has propelled an estimated 3 million new claimants onto universal credit, prompting fresh criticisms of the UK’s social security system. On 22 June, the Work and Pension Committee published a report on the response by the Department for Work & Pensions to the outbreak, available in full here. While praising the efforts of DWP frontline staff, Chair Rt Hon Stephen Timms MP said the pandemic “has highlighted weaknesses” in the system. The Committee found shortcomings in relation to:
Legacy benefits. While the government had raised the rates of Universal Credit and Working Tax Credits to reflect the fact that the virus has increased living costs for disabled people, people on benefits yet to be replaced by UC have not been similarly helped. It was “unacceptable” that such people were left facing hardship through no fault of their own.
No Recourse to Public Funds. The report calls for the suspension of this condition. During a pandemic, it argues, it cannot be in the public interest to deny people, including key workers and frontline staff, access to the welfare safety net on the basis of their immigration status.
Universal Credit. The minimum five-week wait for a first payment was singled out for particular criticism. It led to many people taking out a repayable Advance, but the system lacked any flexibility to suspend repayments of these Advances.
In related news, and on the same day, four single mothers secured a victory against the government. The Court of Appeal unanimously ruled that the Secretary of State for Work and Pensions (SSWP) has acted irrationally and unlawfully by making universal credit regulations which fail to take into account that the date monthly salaries are paid can vary because of weekends and bank holidays.
Considerable criticism has been levied against the government for its provision of essential support and services for survivors of domestic violence before and during the pandemic. Among others, Human Rights Watch argue that the crisis has “exposed longstanding flaws” in the system exacerbated by an “erosion of support for specialist domestic abuse services”.
On 25 June, following a review by legal, charitable and academic experts assessing the risk of harm to children and parents in private law children’s cases, the MoJ has published a report, available in full here. The Domestic Abuse Commissioner Nicole Jacobs noted with approval that the report’s publication comes “in time to implement its recommendations through the Domestic Abuse Bill”, which entered its its report stage in the Commons last Thursday. The report’s key recommendations included:
Physical barriers. Victims will be provided with separate court entrances and waiting rooms, as well as protective screens to shield them from their alleged abuser in court.
Preventing abusers from dragging victims back to court. Judges will make it easier for judges to issue barring orders to protect victims from harassment and re-traumatising.
Reviewing “parental involvement”. The report states that “[a] review of the presumption of parental involvement in s.1(2A) of the Children Act 1989 is needed urgently in order to address its detrimental effects.” In cases of domestic abuse, it could prioritise the abusive power’s right to family life, above the child’s welfare and the abused parent’s right to safety.
Trialling a “problem solving approach”. On the basis that an adversarial approach in the family courts often worsened conflict between parents and retraumatised victims and their children, a new investigative approach will be trialled. Judges will explore evidence and try to get to the root of issues, rather than parents presenting their cases against each other with limited intervention.
In Other News
Liberty and Ed Bridges, a Cardiff resident, have brought a legal challenge against the use of automated facial recognition technology by South Wales police in the Court of Appeal. It was argued that the technology’s use radically alters the way in which Britain is policed, is racially discriminatory, breaches privacy rights and is contrary to data protection laws.
A review into the use of pain-inducing techniques against children in custody has concluded that they should be an “absolute exception” to save life or prevent serious harm, but stopped short of calling for an outright ban.
Leilani Farha, the UN’s special rapporteur on adequate housing, has warned the UK government that its failure to replace dangerous cladding on buildings in the wake of the Grenfell Tower fire could be a breach of international law.
In the Courts
LC (A Child – Placement Order)  EWCA Civ 787: the Court of Appeal dismissed an appeal by a local authority against a decision to refuse the authority’s placement order in respect of a child. The two-year-old child, who had an Indian father and a Hungarian Roma mother, was of unusual heritage, which she shared with her two brothers, aged eight and seven. The authority had argued that the best option for the child was to be adopted, while her older siblings were placed in long-term foster care. The recorder had ruled that the stability this arrangement would offer did not outweigh the importance of the child maintaining a bond with her birth family, including her siblings, and her cultural heritage. The court was satisfied the recorder had “carried out a fair and balanced analysis.” The case comes shortly after the Supreme Court’s consideration of the role of siblings in the procedures by which children’s hearings in Scotland make compulsory supervision orders.
Inkster v R  EWCA Crim 796: the Court of Appeal quashed the appellant father’s conviction for breach of a non-molestation order preventing him from directly contacting the complainant mother. The mother’s repeated failure to respond to contact from designated third party intermediaries in relation to child arrangements amount to a “reasonable excuse” for making contact. The judge’s interventions had placed pressure on the unrepresented appellant to plead guilty by leading him to wrongly believe that he had no defence on the basis of a reasonable excuse.
Bater-James & Anor v R.  EWCA Crim 790: the Court of Appeal dismissed two otherwise unrelated appeals against conviction which were listed together to provide the court an opportunity to consider various issues relating to the retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses. The cases focussed on claimants alleging sexual assault, but the four principles laid out would be “equally relevant – depending always on the facts – to other prosecution witnesses.”
First, a “reasonable line of inquiry” was necessary for investigators to seek to review a witness’s digital material, which would depend on the facts.
Second, investigators should adopt an incremental approach to reviewing a witness’s electronic communications.
Third, a complainant should be reassured that (i) the prosecution will keep them informed as to any decision made as to disclosure, (ii) that any device would only be inspected if there is no other appropriate method of discharging the prosecution’s disclosure obligations, and (iii) that material will be provided to the defence only if it meets the strict test for disclosure, in a redacted form.
Fourth, if a complainant refuses to permit access to a device or deletes relevant material, the court will need to consider the reasons for this action carefully.
Gerulskis & Anor v The Prosecutor General’s Office of the Republic of Lithuania  EWHC 1645: the High Court heard granted two appeals and dismissed the rolled up hearings against orders for extradition to Lithuania. The court found that there did not exist a real risk of impermissible treatment contrary to article 3 of the ECHR. The “danger caused by the spread of COVID-19” was raised, but dismissed since there was no evidence of the virus in prisons in Lithuania. There had been no breach of article 8, since the interference with the appellants’ rights and the rights of their children had been correctly balanced against the public interest in complying with extradition obligations. The extraditions had therefore been proportionate.
On the UKHRB
Anna Dannreuther considersRe X  EWFC 39, which concerned the statutory criteria for granting parental orders over children born as the result of surrogacy arrangement in circumstances involving the death of an intending parent.
Henry Tufnell clarifies the confusion surrounding cross-border travel between England and Wales under the Coronavirus Regulations.
Ben Christman discusses the functions and powers of Scotland’s new environmental watchdog, Environmental Standard Scotland, in the UK Withdrawal from the EU (Continuity) (Scotland) Bill.
Clodagh Bradley QC outlinesGMC v Awan EWHC 1553, which concerned GP’s sexually motivated online chat with someone posing as a 13-year-old child.
Rosalind English surveys a report considering the GDPR requirements for machine learning in healthcare and medical research.
The European Court of Human Rights continues to make it clear that a failure by member states to protect people from domestic violence is likely to cross the high hurdle of the prohibition on degrading and inhumane treatment under Article 3.” It isn’t all about women. In the latest decision, Affaire Buturuga v Romania (App No. 56867/15), (available only in French) the Court found a breach of articles 3 and 8 in respect of a failure to investigate adequately and/or take action on complaints of domestic violence and awarded €10,000 general damages.
It is undeniable that the Human Rights Act has had a significant impact on the work of the Supreme Court. Just under a quarter (14 of 61) of cases decided during the Court’s 2018-19 term featured a determination on at least one issue relating to the Act or the European Convention on Human Rights. The UK Supreme Court is soon to begin Hilary Term 2020, and whilst the docket of cases it is set to hear this term seems to largely steer clear of controversial human rights issues we can nonetheless be confident that 2020 will feature its usual share of big human rights cases. What follows is a short preview of some of the more interesting and controversial of those cases, all of which the Court is due to hand down at some point this year.
It is well established that, under Article 3 ECHR, the United Kingdom cannot deport an individual to a country where, there is a “real risk” of them being subjected to torture, inhuman or degrading treatment. This has been extended to include situations where the deportee would be placed in circumstances which might occasion a significant deterioration of health, including where they lack access to life-saving treatment.
The question in this case is whether Article 3 prohibits deportation in AM’s situation. He is an HIV-positive individual, whose condition for many years was being managed by anti-retroviral drugs in the UK. If deported to Zimbabwe, he would be very unlikely to have access to the same treatment. Although some medical options would be available to him, they would likely be significantly less effective for the management of his condition.
Previous authorities had restricted the application of Article 3 to ‘deathbed’ cases only, where the deportee would likely die quickly following their removal from the country.
The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.
A NHS Foundation Trust v Ms X (By her litigation friend, the Official Solicitor), 8 October 2014  EWCOP 35 – read judgment
The issues that arose before the Court of Protection in this case encapsulate the difficulties involved in applying legal tools to the organic swamp of human pathology. Everything that one may envisage, for example, in planning a “living will” (or, more precisely, an Advance Decision under the Mental Capacity Act), may have no application at the critical time because the human body – or rather the way it falls apart – does not fit in to neat legal categories. In such a situation it is often the right to autonomy that is most at risk, since what you plan for your own medical and physiological future may not square with what the authorities you decide you were capable of planning. Cobb J’s sensitive and humane judgement in this sad case is a very encouraging sign that courts are beginning to resist the tyrannous claims of Article 2 and the obligation to preserve life at all costs.
Factual and legal background
Ms X, a young woman who lives alone in a private rented bed-sit, has suffered from anorexia nervosa for the last 14 years. She also suffers an alcohol dependence syndrome which has caused chronic and, by the time of this hearing, “end-stage” and irreversible liver disease, cirrhosis; this followed many years of abuse of alcohol. The combination of anorexia nervosa and alcohol dependence syndrome is unusual, and has always been medically acutely difficult to manage. This is a vicious cycle of self destructiveness and treatment, and as Cobb J observed,
The causes of her distress are multi-factorial but include the treatment for her anorexia itself and the removal of her personal autonomy when treated
So damaging had been the previous admissions for compulsory feeding, her doctors regarded it as “clinically inappropriate, counter-productive and increasingly unethical” to cause her to be readmitted; their experience revealed that on each recent admission, she had been more and more unwell (as a result of her anxiety to reverse the weight gained in hospital during the previous visit, combined with renewed alcohol abuse). In fact Ms X had been on an ‘end of life pathway’ twice in recent months and it was said that her physical condition “is now so fragile that her life is in imminent danger.” Continue reading →
DSD and NVB v The Commissioner of Police for the Metropolis  EWHC 2493 (QB), Green J – read judgment
This is an important summary of the principles applicable to HR damages, particularly in circumstances where there have been other payments already made arguably in respect of the acts in question. So it should be first port of call if you have an HR damages problem, not least because it gathers all the learning together.
Green J decided in March 2014 that the police had a duty to conduct investigations into particularly severe violent acts in timely and efficient manner, and that there had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so-called “black cab rapist”, one John Worboys. This amounted to a breach of the of the victims’ rights under Article 3 of the ECHR. See Rosalind English’s post on the liability judgment here
DSD and NVB v The Commissioner of Police for the Metropolis  EWHC 436 (QB) – read judgment
The police have a duty to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner. There had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so called “black cab rapist” amounting to a breach of the of the victims’ rights under Article 3 of the ECHR.
The claimants were among the victims of the so called “black cab rapist” (W), who over a six year period between 2002 and 2008 had committed more than 100 drug and alcohol assisted rapes and sexual assaults on women whom he had been carrying in his cab. Both DSD and NVB complained to the police, who commenced investigations, but failed to bring W to justice until 2009. Under the common law the police do not owe a duty of care in negligence in relation to the investigation of crime: See Hill v Chief Constable of West Yorkshire AC 53 per Lord Keith at pp. 63A-64A and per Lord Templeman at p. 65C-E; Brooks v Commissioner of Police of the Metropolis 1 WLR 1495; and Smith v Chief Constable of Sussex 1 AC 225.
McLoughlin, R v  EWCA Crim 188 (18 February 2014) – read judgment
The Court of Appeal has today ruled that judges can continue to impose whole life orders in accordance with Schedule 21 of the Criminal Justice Act 2003.
On the facts of two individual cases, the Court increased the sentence of Ian McLaughlin to one of a whole life term for the murder of Graham Buck. The Court dismissed an appeal by Lee Newell against his whole life order for the murder of Subhan Anwar.
Shahid v The Scottish Ministers  ScotCS CSIH – 18 – read judgment
Solitary confinement of a dangerous prisoner in accordance with the prison rules was neither unlawful nor in breach of his Convention rights, the Scottish Court of Session has ruled.
The petitioner (as we shall call him to avoid confusion, rather than the more accurate “reclaimer”) was serving a life sentence for what the court described as a “brutal and sadistic” racially motivated murder of a 15 year old white boy in 2006. Apart from a short period during his trial he remained continuously segregated until 13 August 2010, when he was allowed once again to associate with other prisoners (“mainstream”). He claimed that his segregation was contrary to the Prisons and Young Offenders Institutions (Scotland) Rules 2006 and, separately, contrary to Article 3 of the European Convention on Human Rights, which provides protection against torture and cruel and unusual punishments, and Article 8, which protects the right to private life. He sought declarations to that effect and £6,000 by way of damages. Continue reading →
El-Masri v. The Former Yugoslav Republic Of Macedonia, Grand Chamber of ECtHR, 13 December 2012, read judgment
In a hard-hitting judgment, the 17 judges of the Grand Chamber found Macedonia (FYROM) responsible for the extraordinary rendition of Mr El-Masri, a German national, by the CIA to Afghanistan. We have all seen the films and read about this process – but even so the account given by the Court is breath-taking. And in so doing, most of the members of the Court made explicit reference to the importance of a right to the truth – not simply for El-Masri, the applicant, but for other victims, and members of the public generally. And the story is all the more chilling because the whole episode appears to have been caused by mistaken identity.
The imposition of whole life orders for extremely serious crimes does not violate the prohibition on inhuman and degrading treatment under Article 3.
Until relatively recently, the Secretary of State decided the minimum term to be served by a “lifer” – a defendant who subjected to a sentence of life imprisonment. This is now a matter for the sentencing judge whose jurisdiction is conferred by the 2003 Criminal Justice Act. Schedule 21 para 4 allows judges to order a whole life minimum term, a jurisdiction of last resort in cases of exceptional criminality.
It was submitted in these conjoined appeals that this provision contravenes Article 3 of the European Convention of Human Rights. Not so, said the Court of Appeal, Criminal Division.
How is a Member State of the ECHR supposed to react when the UN Security Council tells it to do one thing and the Convention requires it to do another? That is the interesting and important question which the Grand Chamber of the European Court of Human Rights was presented with, and dodged, in its recent decision in Nada v. Switzerland.
Mr Nada is an 82-year-old Italian-Egyptian financier and businessman, who in November 2001 found himself in the unfortunate position of having his name added to the international list of suspected funders and supporters of al-Qaeda and the Taliban, which is maintained by the Sanctions Committee of the UN Security Council. Mr Nada has consistently denied that he has any connection to al-Qaeda or any other terrorist group, and in 2005 the Swiss Government closed an investigation after finding that the accusations against him were unsubstantiated. However, despite this Mr Nada remained on the list until September 2009. During the intervening 8 years the impact on Mr Nada’s health and his private and family life was severe, so he brought a claim against Switzerland for breach of his Article 8 rights, as well as breaches of Article 13 (right to an effective remedy), Article 3 (right not to be subjected to ill-treatment), Article 5 (right to liberty) and Article 9 (right to freedom of religion).
In a ruling revealing stark differences between the UK courts and the Strasbourg court’s approach to the threshold for Article 3 treatment, Strasbourg has ruled that the detention of a mentally ill man in police custody for more than three days breached his rights under that provision
The Court held in particular that the applicant’s prolonged detention without appropriate psychiatric treatment had diminished his human dignity, although there had been no intentional neglect on the part of the police.
The following details are taken from the Strasbourg Court’s press release:
The applicant was arrested in Birmingham in the early morning of 6 December 2004, after the police had been called to deal with him because, highly agitated, he was sitting in a car sounding its horn continuously. His detention at a police station was authorised under the 1983 Mental Health Act, which allows the detention of a person suffering from a mental disorder for up to 72 hours for the purpose of being examined by a doctor and receiving treatment. The police subsequently found the applicant’s aunt at his address, seriously injured by him. Continue reading →
HARKINS AND EDWARDS v. THE UNITED KINGDOM – 9146/07  ECHR 45 – Read judgment
The European Court of Human Rights has found that there would be no breach of Article 3 ECHR (prohibition of inhuman and degrading treatment) in extraditing two men accused of murder to the US.
The men argued that they face the death penalty or life imprisonment without parole if found guilty. The US had given assurances to the UK government that the death penalty would not be sought. The following summary is based on the Court’s press release (my abridgement):
In a potentially landmark case, the European Court has been asked to determine the extent to which a local authority is under a duty prevent a breach of a person’s rights under Articles 3 (against inhuman and degrading treatment) and 8 (home and family life) in a case where two people with learning difficulties were violently harassed and threatened by a group of teenage youths.
The case concerns vulnerable adults who rely on social services. X and Y, who are married, both have learning difficulties. Z is the mother of X, and acted as a carer and advocate for both X and Y. X and Y lived in Hounslow Borough with Y’s two young children. Three local authority departments were involved with X and Y’s family, providing for their housing needs and allocating social workers for both the adults and children. Over a period from August 1999 until November 2000, X and Y were continually harassed and threatened by a group of teenage youths, who used the flat as a general ‘doss house’, dumping stolen goods, having sex and staying overnight.
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