Faced with mounting criticism of his reluctance to impose restrictions on British society in the face of the Covid-19 crisis, this evening Boris Johnson ratcheted up Britain’s response by announcing a strict lockdown across the country. His address to the nation is available in full here.
Earlier this month, the Scottish Parliament’s Justice Sub-Committee on Policing published a report which concluded that live facial recognition technology is currently “not fit” for use by Police Scotland.
Police Scotland had initially planned to introduce live facial recognition technology (“the technology”) in 2026. However, this has now been called into question as a result of the report’s findings – that the technology is extremely inaccurate, discriminatory, and ineffective. Not only that, but it also noted that the technology would be a “radical departure” from Police Scotland’s fundamental principle of policing by consent.
In light of the above, the Sub-Committee concluded that there would be “no justifiable basis” for Police Scotland to invest in the technology.
Police Scotland agreed – at least for the time being – and confirmed in the report that they will not introduce the technology at this time. Instead, they will engage in a wider debate with various stakeholders to ensure that the necessary safeguards are in place before introducing it. The Sub-Committee believed that such a debate was essential in order to assess the necessity and accuracy of the technology, as well as the potential impact it could have on people and communities.
The report is undoubtedly significant as it reaffirms that the current state of the technology is ineffective. It therefore strengthens the argument that we should have a much wider debate about the technology before we ever introduce it onto our streets. This is important not only on a practical level but also from a human rights perspective, especially set against the backdrop of the technology’s controversial use elsewhere.
Public order cases involving protests have always sparked controversy, with the collision between the state’s responsibility to ensure the smooth running of civil society and the individual citizen’s right to draw attention to what they regard as a pressing moral concern.
The optics on this are tricky. Protesters giving up their time and energy to raise attention; police moving them on. Which do we support, freedom of physical movement or free expression of thoughts?
There is a welter of debate and criminal legislation behind public protest action and this or that provision that authorises arrest. With the recent case of Dulgheriu & otrs v Ealing Council  EWCA Civ 1490, I want to focus attention on what exactly triggers a prohibition of public protest under Section 59 of the Anti-social Behaviour, Crime and Policing Act of 2014. This provision allows councils to local authorities to issue a “Public Service Protection Order (“PSPO”) to prohibit public protests if they are satisfied that these are “detrimental” to the quality of life of “those in the locality”. Anyone who fails to comply with the requirements of a PSPO or to violate any prohibition contained in the order is liable to a fine of £1000.
The Court of Appeal dismissed a challenge to one of these PSPOs prohibiting anti-abortion protests in the immediate vicinity of Marie Stopes’ UK West London Centre. The Court concluded that the judge below had been correct to find that the pro-life activists’ activities had a detrimental effect within the meaning of s.59 of the 2014 Act. The Article 8 rights of the women wanting to access the clinic’s abortion procedures had been engaged and outweighed the pro-life activists’ rights under Articles 9, 10 and 11.
Privacy International v. Investigatory Powers Tribunal  EWHC EWCA Civ 1868, Court of Appeal, 23 November 2017
As all lawyers know, the great case about courts confronting a no-go area for them is the late 1960’s case of Anisminic.
A statutory Commission was given the job of deciding whether compensation should be awarded for property sequestrated, in the particular case as a result of the 1956 Suez crisis. The Act empowering it said that the
determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.
The House of Lords, blasting aside arcane distinctions, said that this provision was not enough to oust judicial review for error of law.
Fast forward 50 years, and another Act which says
determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.
The Court of Appeal has just decided that, unlike Anisminic, this Act does exclude any judicial review.
R (o.t.a P & others) v. Secretary of State for Home Department & others  EWCA Civ 321, Court of Appeal, 3 May 2017 – read judgment
The Court of Appeal has upheld challenges to the system of the police retaining information about past misconduct. It held that the system, even after a re-boot in 2013 in response to an earlier successful challenge, remains non-compliant with Article 8.
The problem is well summarised by Leveson P in the first paragraph of the judgment, namely the interface between a system of rehabilitation of offenders and the minimisation of risk to the public caused by the employment of those with misconduct in their pasts.
This week, the mosaic shrine adorning the wall outside Stockwell underground station once again became the focal point for difficult questions surrounding the police response the terrorist attacks of 2005.
The judgment of a Grand Chamber of the European Court of Human Rights in Da Silva v the United Kingdom draws a line under a long legal battle mounted by the family of Jean Charles de Menezes, the young Brazilian electrician shot dead by the Metropolitan Police on 22 July 2005 having been mistaken for a suicide bomber. Continue reading →
According to research released by the Home Office, large increases in stop and search operations have no discernible effect on crime reduction. The official study examined crime rates across 10 London boroughs in the first year of Operation Blunt 2, which led to a surge in the number of searches from 34,154 in the year before to 123,335 in 2008/2009.
The findings are likely to lend support to the position of the Home Secretary, Theresa May who in 2014 introduced new measures to curtail reliance on the powers. She has previously been critical of claims by the Metropolitan Police that a rise in knife crime in recent months is linked to a drop in the use of stop and search, warning against a “knee-jerk reaction.”
Police powers to conduct the searches have proved highly controversial, with campaigners arguing that ethnic minority groups are disproportionately targeted. An analysis by the Independent found that between December 2014 and April 2015, black people were more likely to be stopped than white people in 36 out of 39 police forces. Continue reading →
A majority of the Supreme Court has held that the retention by police of information on the Domestic Extremism Database about a 91 year-old activist’s presence at political protests was (1) in accordance with the law and (2) a proportionate interference with his right to a private life under Article 8(1) of the ECHR.
However, Lord Toulson’s dissent noted that the information was retained for many years after Mr Catt had attended these mainstream political events, and the police had concluded that he was not known to have acted violently. Accordingly, he thought its retention was unnecessary and disproportionate.
Chief Constable of Greater Manchester v Calder  EWHC B11 – Read judgment
Adam Wagner represented Scott Calder in this case. He is not the writer of this post.
The Greater Manchester Police (‘GMP’) have been unsuccessful in an attempt to obtain an Injunction to Prevent Gang-Related Violence (‘IPGV’ or ‘Gangbo‘) against Scott Calder. The application was based on police intelligence and the lyrics of Mr Calder’s YouTube Grime Rap videos. On 14 January 2015, Mr Justice Blake dismissed the GMP’s appeal to the High Court, and in doing so laid out guidance on the purpose and ambit of the IPGV legislation, which is currently being substantially amended by Parliament.
The below is based on the Judge’s ex tempore judgment (i.e. given at the hearing). We will post the full judgment when it is available.
M, R (on the application of) v Hampshire Constabulary and another (18 December 2014)  EWCA Civ 1651 – read judgment
The law governing the monitoring of sex offenders, allowing police officers to visit the homes of registered offenders, did not constitute an unlawful interference with the offenders’ privacy rights under Article 8 of the ECHR.
This was an appeal against a decision by the appellant (M) against a decision by Hallett LJ and Collins J in the Administrative Court that the practice of police officers making visits to the homes of registered sex offenders for the purpose of monitoring their behaviour did not violate the Convention. 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
R (on the application of British Sky Broadcasting Limited) (Respondent) v The Commissioner of Police of the Metropolis (Appellant)  UKSC 17 – read judgment
This was an appeal from a ruling by the Administrative Court that it was procedurally unfair, and therefore unlawful, for BSkyB to have had a disclosure order made against it without full access to the evidence on which the police’s case was based and the opportunity to comment on or challenge that evidence. The following report is based partly on the Supreme Court’s press summary (references in square brackets are to paragraphs in the judgment):
Sam Kiley is a journalist who has for many years specialised in covering international affairs and homeland security. In 2008 he was an “embedded” journalist for a period of months within an air assault brigade in Afghanistan, where he was introduced to AB. CD was also serving in Helmand at the same time. Continue reading →
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.
AKJ & Ors v Commissioner of Police for the Metroplis & Ors  EWHC 32 (QB) – Read judgment
The High Court has ruled that the Investigatory Powers Tribunal was the exclusive jurisdiction for Human Rights Act claims against the police as a result of the activities of undercover police officers, authorised as Covert Human Intelligence Sources, where such conduct was not a breach of a fundamental right. The Tribunal did not have jurisdiction to determine proceedings brought by Claimants at common law.
The decision of AKJ and related litigation is the latest instalment of the fallout from the activities of undercover police officer or Covert Human Intelligence Source (CHIS) Mark Kennedy and another police officer. Kennedy infiltrated environmental protest groups including those that resulted in convictions following events at Ratcliffe on Soar power station. The convictions were later quashed following revelations about Kennedy’s activities which included allegations he had engaged in sexual relationships with a number of female protestors and other prosecutorial impropriety: R v Barkshire  EWCA Crim 1885 (UKHRB post). A number of those affected by Kennedy’s actions subsequently brought claims in tort (for example alleging deception) and under the Human Rights Act 1998.
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