Round Up


The Weekly Round-Up: Freedom Day, Tokyo 2020 and the Judicial Review and Courts Bill

26 July 2021 by

In the news:

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 the UKHRB:

The Weekly Round-Up: Migrant Rights, Virginity Testing and Racism

20 July 2021 by

In the news:

Immigration and migrant rights have been at the forefront of the news this week. An investigation has revealed that many undocumented migrants in the UK are being denied access to a vaccine, even though NHS England policy states that ID is not required to register with a GP (needed to book a jab). The vaccines minister, Nadhim Zahawi, confirmed that the vaccine was available to everyone, regardless of immigration status, but the report suggests that in reality, the majority of GPs are refusing registration, and are providing inaccurate information about the necessity of identity documents. The report highlights the danger this practice poses to the health of migrants and the general population in aiding the spread of the virus.

The Home Office has been forced to pay out £9.3 million in compensation this year in response to over 300 cases of unlawful detention. This amounts to a 35% rise in a year. Bella Sankey, Charity Detention Action’s director, has warned that these figures are likely to increase considerably with the Home Secretary’s proposed Nationality and Borders Bill, which aims to process asylum seekers in offshore centres. However, the Home Office stated that it was ‘committed to learning lessons from any case where we concede or the courts deem unlawful’ to reduce the number of unlawful detentions in the future. 


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The Weekly Round-Up: Pride and Policing

6 July 2021 by

In the news:

The Prime Minister this week held a garden reception celebrating Pride Month and welcoming members of the LGBTQ+ community from across the UK.  The PM told the reception audience “we’ve got your back here in this government, we’re determined to stick up for equalities for LGBT people in any way we can.”  This assertion came three years after his own government promised to ban conversion therapy, a term used to describe a variety of practices which attempt to erase, repress or change a person’s sexual orientation and/or gender identity. 

Johnson’s promise to support the LGBTQ+ community also came after the first meeting of the Ban Conversion Therapy Legal Forum, a group of lawyers, academics, cross-party MPs and campaigners, chaired by Baroness Helena Kennedy.  The group released a statement advising the government that the “best way of banning conversion therapy is by using a combination of both civil and criminal remedies” and that the legislation “must be human rights compliant”, prioritising the rights of victims and potential victims.  The Forum acknowledged a ban might impact certain other rights including freedom of religion and belief and freedom of expression, but said the harm caused to LGBTQ+ people, which “amounts to degrading and inhuman treatment”, justified a proportionate restriction of those rights.

In other news:

The All-Party Parliamentary Group on Democracy and the Constitution released a report on its independent inquiry into whether the rights to freedom of expression and peaceful assembly were respected in the policing of the Clapham Common vigil for Sarah Everard on 13 March and the “Kill the Bill” protests in Bristol from 26-29 March.  The report, published 1 July, found that the Metropolitan Police Service (MPS) and the Avon and Somerset Constabulary (A&SC) “failed to understand the nature of the right to protest and how it must be applied in practice” and that their use of power “exacerbated tensions and increased the risk of violence”.  The APPG recommended a new statutory code for the right to protest and policing of protests; removing clauses 55-61 of the Police, Crime, Sentencing and Courts Bill; and a consultation on the creation of an Independent Protest Commission.

In the courts:

In Rashad Maqsood Abbasi and Aliya Abassi (Applicants) v Newcastle upon Tyne Hospitals NHS Foundation Trust (Respondent) and PA Media (Intervener) [2021] EWHC 1699 (Fam) and Takesha Thomas and Lanre Haastrup (Applicants) v Kings College Hospital NHS Trust (Respondent) and PA Media (Intervener) [2021] EWHC 1699 (Fam) the court considered the jurisdiction, if any, that the High Court Family Division has to maintain a Reporting Restriction Order (‘RRO’) prohibiting the naming of any medical clinicians as being involved in the care and treatment of a child who had been the subject of “end of life” proceedings before the High Court prior to their death.


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The Weekly Round-up: Crown courts and protest rights under strain

28 June 2021 by

In the news:

Figures published by the Ministry of Justice showed that the backlog of crown court cases had risen to yet another record high: by 31 March this year, there were almost 60,000 outstanding cases, a rise of 45 per cent on the previous year. In the magistrates’ courts, that figure stood at 400,000, a rise of 21 per cent.

Waiting times have hiked accordingly: the average crown court case it now taking just under a year, 363 days, to be heard. Some trials are already being scheduled for 2023.

These latest figures follow the Ministry of Justice’s End-to-End Rape Review Report on Findings and Actions, covered on last week’s round-up, which revealed that processing times for rape complainants were particularly egregious, averaging around a thousand days between the commission of an offence and the conclusion of a trial.

Several MPs were quick to diagnose root causes of the criminal justice system’s dismal condition. Shadow justice secretary David Lammy complained that ‘the Conservatives are forcing victims of rape, domestic abuse and violent assault to wait months and years for justice if they get it at all’, blaming the compounded effect of ‘the government’s decade of court closures, combined with its incompetent response to the pandemic’. Liberal Democrat MP Wera Hobhouse also pointed to pre-coronavirus underfunding, warning that ‘ministers must not use Covid as an excuse for this backlog, or to undermine the fundamental right to trial by jury.’


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The Weekly Round-up: Further sanctions for Belarus and the end of the legal road for Hillsborough

1 June 2021 by

In the news:

The arrest of opposition activist Roman Protasevich and his girlfriend, Sofia Sapega in Minsk last Sunday, following the forced grounding of Ryanair flight FR4978 from Athens to Vilnius has captured headlines this week. Mr Protasevich is a former editor of Nexta, an online dissident group with the most popular Telegram messaging channel in Belarus. Nexta produces online content in a similar style to that of Russian activist Alexei Navalny, uncovering corruption in Europe’s last dictatorship.

Although state-run Belarussian TV initially claimed that the plane had requested the diversion to Minsk, a later transcript was shown in which air traffic controllers told the pilot that there was a bomb on board the plane. A Russian-bought MiG fighter jet escorted the plane to Minsk airport, where Mr Protasevich and Miss Sapega were detained. Belarus is the last country in Europe to impose the death penalty, and the inclusion of Mr Protasevich on a KGB list of terrorist suspects (for which the death penalty applies in Belarus) has sparked fears over his sentencing. However, he has so far only been charged with organising mass unrest for his coverage of the 2020 election (widely known to have been rigged). The Committee to Protect Journalists records the murders of six journalists in Belarus since 1994, when Alexander Lukashenko became dictator. Self-exiled opposition leader Sviatlana Tsikhanouskaya, who entered politics herself after the arrest of her journalist husband, has reported that she believes Mr Protasevich (who suffers from heart disease) may currently be in hospital following heart complications.

Estonia’s president, Kersti Kaljulaid, has reiterated her pleas for the UK to take a tougher stance on money entering the country from corrupt regimes, whereafter it is dissipated through the London financial sector. She first requested the UK make needed changes after the attempted murders of Sergei and Yulia Skripal in 2018 by FSB agents. While the government has stated it will take action, there is not yet any evidence of fresh safeguards to prevent money flowing through the UK system. The UK, which already sanctions Belarus, is now preparing to discuss further sanctions in tandem with EU leaders.


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The Weekly Round-up: Criminal justice scandals and ‘prison-like’ hotels for victims of modern slavery

24 May 2021 by

In the news:

Failures of the criminal justice system were once again under the spotlight this week.

On Wednesday, business minister Paul Scully announced a statutory inquiry into the sub-postmaster scandal, following widespread outrage at one of the greatest miscarriages of justice un UK legal history. After the Court of Appeal quashed the convictions of 39 former sub-postmasters last month, hundreds more have been invited to appeal their own convictions for theft and fraudulent accounting, which may have been based on faulty evidence from the Post Office’s ‘Horizon’ digital accounting system. 

The full public inquiry may include an investigation of the role played by Post Office lawyers in possible failures to disclose important evidence discrediting the accuracy of the Horizon system. The Solicitors Regulation Authority had already confirmed last month that it was monitoring the case, after the judgment levelled criticism at a culture among the prosecution counsel of ‘seeking to avoid legal obligations when fulfilment of those obligations would be inconvenient and/or costly.’

The inquiry will be led by Sir Wyn Williams, President of Welsh Tribunals, and is expected to submit its findings in autumn 2022. 

Meanwhile, a stand-off emerged between the Home Secretary and an independent panel set up to investigate the murder of private investigator Daniel Morgan in 1987, for which no one has been convicted.


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The Weekly Round-Up: The Queen’s Speech and Gendered Violence

18 May 2021 by

In the News:

In the Queen’s Speech last week, the government presented its legislative programme for the next session of parliament, including a number of bills with important human rights implications. The speech was of particular interest because of the extent to which Brexit and COVID-19 have dominated the prime minister’s time in office so far.

Last Tuesday’s to-do list includes an enormous 31 bills, listed in full here and set out in greater detail here. Two bills with key implications are addressed below.


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The Weekly Round-Up: government under pressure over child marriage loophole and fire and rehire schemes

10 May 2021 by

In the news:

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.


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The Weekly Round-Up: #KillTheBill, FPN reviews, and rights under threat in India

3 May 2021 by

In the news:

People aged 42 and over are now able to book their Covid-19 vaccines, joining the more than 33.8 million people in the UK who have received their first dose.  The news comes as the Joint Committee on Human Rights called for a review of all fixed penalty notices (FPNs) for lockdown breaches and called the system “muddled, discriminatory and unfair”.  The committee chair, Harriet Harman MP, said the “lack of legal clarity” meant an unfair system which “disproportionately hits the less well-off and criminalises the poor over the better off”.  The report highlighted concerns about FPN validity, an inadequate review and appeals process, the size of penalties and the criminalisation of those unable to pay.  A CPS review found that 27% of coronavirus-related prosecutions that reached open court in February were incorrectly charged.  The lack of an adequate means to seek review of an FPN, other than through criminal prosecution, significantly increases the risk that human rights breaches will not be remedied, according to the committee. The importance of ECHR Articles 7 and 8 (no punishment without law and right to family and private life, respectively) was highlighted in particular.


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The Weekly Round-up: Home Office deaths and Post Office “thefts”

26 April 2021 by

Home Secretary Priti Patel

In the News:

The Upper Tribunal (Immigration and Asylum Chamber) has found that Priti Patel breached her procedural obligations under Article 2 of the ECHR in respect of deaths in immigration detention.  

The application for judicial review arose following the death of Oscar Lucky Okwurime on 12 September 2019 in his cell at IRC Harmondsworth. Mr Okwurime had tried but failed to secure healthcare at the centre. He was not provided with his obligatory ‘Rule 34’ GP appointment within 24 hours of his arrival.

Priti Patel was subject to a legal requirement to assist the coronial inquest by identifying and securing evidence from potential witnesses. Instead, she elected to continue with her plans to remove a number of potential witnesses, including the Applicant, Mr Lawal, a close friend of Mr Okwurime.

Later, the Area Coroner for West London required Mr Lawal to attend the inquest on the basis that he was “an important witness of fact.” The jury later found that “multiple failures to adhere to healthcare policy” and “neglect” contributed to Mr Okwurime’s death from coronary heart disease.

The court found that Patel acted unlawfully in deciding to remove the Applicant in that she failed to take to take reasonable steps to secure the applicant’s evidence concerning the death of Oscar Okwurime. Aditionally, the absence of a policy directing caseworkers on how to exercise immigration powers in a case concerning a witness to a death in custody was unlawful. This was contrary to her Article 2 procedural obligations.

A Home Office spokesperson has said that, in light of the judgment, its processes were being refreshed and a checklist was being introduced to ensure all potential witnesses are identified.

The decision comes as Patel faces criticism for “serious mistakes” and “fundamental failures of leadership and planning” by the Home Office in managing former military sites as makeshift accommodation for asylum seekers. The Home Office is also being sued by a female asylum seeker who claims that staff at her asylum accommodation refused to call an ambulance for three hours after she told them she was pregnant, in pain and bleeding. When she was eventually taken to a nearby hospital, she learned that her baby had died.

In Other News:

  • Helena Kennedy QC, a leading human rights barrister and author of Eve Was Framed, has been included on the list of those sanctioned by the Chinese government for criticism of the human rights abuses against Uighur Muslims in Xinjiang province. Together with David Alton, a crossbencher, she helmed an ultimately unsuccessful attempt to persuade the UK government to create a procedure that would have enabled the English high court to make a determination on whether the evidence reached the threshold for genocide. China has imposed sanctions on 10 other UK organisations and individuals, including the former leader of the Conservative party Iain Duncan Smith, over what it called the spreading of “lies and disinformation” about human rights abuses in Xinjiang.
  • The investigatory powers tribunal (IPT), which examines allegations that the state has misused its surveillance powers, has heard from an environmental activist who was deceived into a long-term sexual relationship by an undercover Metropolitan police officer that his managers knew about the deception and allowed it to continue. A judge-led public inquiry into the activities of undercover officers is ongoing; Phillipa Kaufmann QC, who represents women deceived into sexual relationships, has called the practice “endemic”.

In the Courts:

  • Hamilton & Ors v Post Office Ltd [2021] EWCA Crim 577: the Court of Appeal quashed the convictions of thirty nine men and women employed by the Post Office as sub-postmasters, sub-postmistresses, managers or counter assistants; three other former employees’ appeals failed and were dismissed. All the appellants were prosecuted by their employer and convicted of crimes of dishonesty. The reliability of the computerised accounting system, “Horizon”, in use in branch post offices during the relevant period, was essential to the prosecutions. Despite repeated assertions by the Post Office that the system was robust and reliable, it has become clear that it was critically undermined by bugs and glitches which cause it to incorrectly record shortfalls. The court called the convictions “an affront to the public conscience.” A public inquiry chaired by Sir Wyn Williams, President of Welsh Tribunals, is currently trying to establish an account of the implementations and failings of the system.
  • Howard, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 1023 (Admin): the High Court ruled that the Home Office’s handling of a Windrush citizenship application was irrational and unlawful. Hubert Howard was repeatedly denied British citizenship over the course of a decade, despite having lived in the UK since he arrived from Jamaica at the age of three in 1960, on the grounds that a number of minor convictions prevented him from meeting a “good character” requirement, which is an eligibility criteria for citizenship.
  • Elkundi & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1024 (Admin): the High Court has ruled that Birmingham City Council has been operating an unlawful system for the performance of its main housing duty under the Housing Act 1996. The Council had been operating on the basis that an applicant owed the main housing duty may be left in unsuitable accommodation while the Council takes a reasonable time to secure permanent suitable accommodation. Steyn J held that this was unlawful; the main housing duty is an “immediate, unqualified and non-deferrable” duty to secure suitable accommodation. Putting applicants on a waiting list was not a lawful means of performing that duty.

On the UKHRB:

  • Caroline Cross covers a recent case in which the boundaries of causation in mesothelioma deaths were tested and clarified.
  • Martin Forde QC summarises the High Court’s decision (set out briefly above) that the Home Office’s handling of a Windrush citizenship application was unlawful

The Weekly Round-Up: are immigrants and asylum seekers getting their day in court?

19 April 2021 by

In the news:

The rights of immigrants and asylum seekers have been at the forefront of the news this week, with the Home Secretary coming under fire both in the courts and in the political arena. On Wednesday, a landmark court ruling held Ms Patel accountable for failures properly to investigate deaths among asylum seekers at detention centres. The case concerned two Nigerian nationals, one of whom was found dead in Harmondsworth immigration centre in 2019. His friend, Mr Lawal, was a key witness in the investigation of the death, but the Home Office sought to deport him before he could give evidence. The court held that the Home Secretary’s initial policy, which sought to remove Mr Lawal, its replacement, applied from August 2020, and the current policy, were unlawful and breached human rights because they failed to ensure that those who had relevant information would be able to give evidence before removal proceedings were commenced, thus frustrating inquiries into immigration centre deaths. Days later it was reported that this may be a widespread problem, with suggestions that scores of people had been prevented from giving key evidence to police investigations as a result of early deportation. While Ms Patel was warned that this practice must be curbed by a coroner in August, it is suggested that her response did little to address the problem.


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The Weekly Round-Up: Amnesty unimpressed and government care home guidance “grossly discriminatory”

12 April 2021 by

In the news:

On Wednesday, Amnesty International released its 2020/21 report on the state of the world’s human rights.  Amnesty’s UK director, Kate Allen, also called for an inquiry into the government’s handling of the pandemic and said “the government is now shamefully trying to strip away our right to lawfully challenge its decisions, no matter how poor they are.”  The report highlighted human rights concerns related to the government’s response to COVID-19, including health, immigration, domestic abuse and housing.  There were also concerns around police conduct around racial discrimination and excessive use of force against protesters; during the first national lockdown in May, 10,000 of 43,644 recorded stop and searches conducted against young black men.  Several legal developments were criticised for falling short of human rights standards, including the Immigration Act, the Gender Recognition Act, the Domestic Abuse Bill, the Counter-Terrorism and Sentencing Bill, the Overseas Operations (Service Personnel and Veterans) Bill, which would create a “presumption against prosecution” for members of the British Army accused of overseas crimes, including torture, committed more than five years earlier.


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The Weekly Round-Up: New Police Powers and Domestic Abuse in the Family Courts

5 April 2021 by

In the news

On Friday, former Home Secretary Lord Blunkett raised his issues with the Police, Crime, Sentencing and Courts Bill, an enormous piece of legislation that reforms much existing legislation and common law offences. Lord Blunkett pointed to the difficulties the police could face in interpreting the new law, and the sensitive nature of the relationship between the police and protestors. The Bill is currently at the Committee Stage of Parliamentary procedure. Particular attention has been drawn to s.59 of the Bill, which purportedly codifies the common law offence of public nuisance, following the recommendations of the Law Commission’s 2015 report, Simplification of Criminal Law: Public Nuisance and Outraging Public Decency. This section would create an offence of ‘intentionally or recklessly causing public nuisance’, defined as where a person’s act or omission causes serious harm to the public or a section of the public. Subsection (2) states that this offence can be constituted where ‘a person’ suffers ‘serious distress, serious annoyance, serious inconvenience or serious loss of amenity’. On indictment, a defendant is liable to imprisonment for a term up to ten years. While the Law Commission’s recommendation that the fault element should be intention or recklessness as opposed to ‘knew or should have known’ was adopted, the significant maximum term is a new addition.


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The Weekly Round-up: expeditious return vs non-refoulment

22 March 2021 by

The duty to expeditiously return under the Hague Convention vs the principle of non-refoulment in asylum law

In the News:

Last week, the Supreme Court considered an interesting interplay between two competing obligations of the state: on the one hand, the duty expeditiously to return a wrongfully removed or retained child to his home jurisdiction under the Convention on the Civil Aspects of International Child Abduction (“the 1980 Hague Convention”); on the other, the principle that refugees should not be refouled, meaning expelled or returned to a country where they have a well-founded fear of persecution.

The parties to G (Appellant) v G (Respondent) [2021] UKSC 9 are the divorced parents of an eight-year-old girl (“G”). G was born in South Africa, and was habitually resident until G’s mother wrongfully removed her to England, in breach of G’s father’s custody rights. G’s mother fled South Africa when, after separating from G’s father and coming out as a lesbian, her family subjected her to death threats and violence. On her arrival in England, she applied for asylum and listed G as a dependant on her asylum application.

G’s father applied for an order under the 1980 Hague Convention for G’s return to South Africa. At first instance, Lieven J held the application should be stayed pending the determination of G’s mother’s asylum claim. The Court of Appeal considered that the High Court was not barred from determining the father’s application or making an order for expeditious return


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The Weekly Round-Up: Women’s Rights – a Long Way to Go

15 March 2021 by

In the news:

Women’s rights and gender equality issues have been at the forefront of the news this week. The appalling murder of Sarah Everard, abducted when walking home in London, has elicited a huge social media response. In particular, it has highlighted the problematic phenomenon of victim-blaming directed at women, with advice focusing on teaching woman how to avoid being sexually harassed, rather than educating men about how to be better allies in calling out the misogynistic behaviour that enables harassment. These events coincided with statistics published by the World Health Organisation on Tuesday, which found that one in three women have been physically or sexually assaulted by their male partner across the world, and a survey conducted by UN Women UK published on Wednesday, which showed that 97% of women between the ages of 18 and 24 had been sexually harassed. The latter study also revealed that the majority of women don’t report these incidents because they don’t have confidence that the abuse will be dealt with effectively by the police or the legal system. On Tuesday the government unveiled the new Police, Crime, Sentencing and Courts Bill which, among other changes, has amended the sentencing laws for sexual offenders, enabling them to be put behind bars for longer. The government stated the new legislation was aimed at ‘restoring confidence in the criminal justice system’. However, given current statistics indicating a diminished number of successful rape prosecutions in the last year, it seems unlikely that the mere possibility of tougher sentences for sexual offenders once convicted is going to improve women’s confidence in the justice system. In fact, the new Bill has been substantially criticised by equality and civil liberties campaigners because it will increase the powers of the police to shut down public protest. Under the new law, the Home Secretary would be able to label particular protests as a ‘serious disruption’, enabling the police to then impose stringent conditions on the demonstration. The first detailed discussion of the Bill in Parliament today comes after accusations that the police were ‘too heavy-handed’ in dealing with demonstrators at the Sarah Everard vigil on Saturday evening. However, the Conservative majority in the Commons will almost certainly ensure that the Bill passes.


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