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It has been a quiet week in the courts from a human rights perspective. The Supreme Court gave judgment on a divorce case and a social security fraud, and whilst the Court of Appeal and High Court were more forthcoming in terms of the number of decisions made, family law and commercial cases dominated. Legal buffs may however be interested to note Scales v Motor Insurers’ Bureau [2020] EWHC 1747 (QB), in which the High Court applied Spanish law in a road traffic accident case, whilst celebrity watchers and students revising for their civil litigation exams may appreciate seeing how the court applied the test from Denton to grant Johnny Christopher Depp II relief from sanctions (who knew there was a Johnny Christopher Depp I?) – Depp v News Group Newspapers Ltd & Ors [2020] EWHC 1734 (QB).
A quiet week in the courts did not however extend to a quiet week in the news…
China imposed its new security law on Hong Kong. The law was approved by legislators despite the fact it was not made available for them to read in advance. The exact provisions of the law are covered in some detail by the BBC here, but amount to a full frontal assault on established legal protections in the territory. In response to the prospect of trials without a jury conducted by politically appointed judges, the UK took steps to afford citizenship rights to 3 million holders of British National Overseas passports.
Whilst protesting the loss of jury trials in Hong Kong, the Government took steps to restrict the right to trial by jury in the UK. The measures, which the Government assures are to be temporary, aim to help clear the developing backlog of criminal cases caused by a long-standing lack of court capacity. The situation has been further exacerbated by the closure of courts during the Covid-19 pandemic.
The Commercial Court ruled against Nicolas Maduro’s attempt to have the Bank of England release stores of Venezuelan gold held in the bank’s Threadneedle Street vault – Deutsche Bank AG London Branch v Receivers Appointed By the Court & Ors [2020] EWHC 1721 (Comm). The United Kingdom recognises the opposition of Juan Guaido, however Mr Maduro had claimed that circumstances on the ground, including the UK’s ongoing diplomatic presence in Caracas, made him the countries de facto leader.
In response to a rise in the number of coronavirus cases in Leicester, the Government introduced a local “lockdown” in the city. Ministers appeared to concede that restrictions were for the time being effectively voluntary, and suggested they would seek to bring forward secondary legislation giving the lockdown legal effect in the next few weeks.
A former professional cricketer failed to have his conviction for rape overturned – Hepburn v R. [2020] EWCA Crim 820 (30 June 2020). Alex Hepburn mounted his appeal on the basis that text messages he had sent prior to the offence in which he discussed participating in a game with his friends to collect as many sexual encounters as possible should not have been placed before the court as evidence against him. His counsel argued that they were unfairly prejudicial as they did not show he was willing to have sex without consent. The Court of Appeal held that their inclusion did not make his conviction unsafe.
Rosalind English considers how the courts approach the concept of “best interests” when an adult making a proposed medical donation with the potential to cause lasting harm to the donor lacks capacity (here), and the case of University Hospital and Warwickshire NHS Trust v K and another [2020] EWCOP 31 (here).
This week the UK government lowered the COVID-19 alert level from level 4 to level 3, with non-essential shops reopening for business on 15 June. July 4 will be “the next big stage” in the government’s plan; it is expected that pubs and restaurants may reopen then. The 2m social distancing rule is under review, and the government have implied that it may be lifted soon.
Meanwhile, the contact tracing app which had been developed by the ‘healthtech’ body NHSX has been scrapped, owing to severe limitations in detecting contacts from iPhones. The government will now move forward instead with a Bluetooth tracing system developed by Google and Apple, looking to incorporate the successful parts of the NHSX app where possible. Whichever system is eventually deployed will face intense scrutiny. Contact tracing apps worldwide are raising human rights concerns, as has been explained by Amnesty International and other organisations.
Black Lives Matter protests continued this week across the cities of the UK, with protesters calling for the removal of statues of figures from UK history associated with the colonial past of the British Empire, such as that of Winston Churchill in Parliament Square. Protesters have also called for the removal of Boris Johnson’s Director of Policy, Munira Mirza. Mirza is a long-standing opponent of the ‘anti-racism’ movement which has gained significant ground during the last few weeks, having been a critic of Blairite ‘multiculturalism’ and the 2017 Lammy Review of BAME groups in the justice system, and having played down allegations of institutional racism such as those raised by the Windrush scandal. She has been asked by the Prime Minister to head a new commission on racial inequalities.
In other news:
The US Supreme Court issued two landmark decisions this week. In Bostock v Clayton County, the court interpreted the word ‘sex’ in Title VII of the Civil Rights Act 1964 as including both sexuality and gender identity, such that it is unlawful for an employer to fire someone merely for being gay or transgender. In Department of Homeland Security v Regents of the University of California et al, the court blocked the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (‘DACA’), a program which protects child immigrants from deportation, on the basis that the administration had failed to provide a ‘reasoned explanation’ for its decision.
UN Human Rights Chief Michelle Bachelet has called for worldwide action on systemic racism. Speaking to the UN Human Rights Council, she said that “behind today’s racial violence, systemic violence and discriminatory policing lies the failure to acknowledge and confront the legacy of the slave trade and colonialism”, and urged countries to “make amends for centuries of violence and discrimination, including through formal apologies, truth-telling policies, and reparations in various forms.”
The US Congress has passed a new law, under which Chinese officials deemed to be responsible for the arbitrary detention and torture of Uighurs will be denied entry to the country and have any assets held in the USA frozen. China’s foreign ministry has strongly criticised the law, stating that the US should ‘immediately correct its mistakes’.
In the courts
There were three noteworthy decisions in the courts this week. These considered, respectively, workers’ rights and coronavirus; criminal procedure and Article 5 ECHR; and Scottish family law and Article 8 ECHR.
R (oao Adiatu & anor) v HM Treasury: this was a judicial review of decisions made by the Treasury in respect of the availability of Statutory Sick Pay (‘SSP’) and the Coronavirus Job Retention Scheme (‘JRS’) during the pandemic. The challenge was brought by Mr Adiatu, a Nigerian Uber driver with leave to remain, together with the Independent Workers’ Union of Great Britain. The Claimants sought a declaration that the Treasury’s decisions were discriminatory under the ECHR and/or EU law and/or in breach of the public sector equality duty (‘PSED’) under s.149 Equality Act 2010. The court rejected this on all counts: the Treasury was within its margin of appreciation under the ECHR, noting the urgency and practical difficulties involved in applying SSP and the JRS during the coronavirus crisis; the means adopted by the Treasury were proportionate; and ministerial submissions prior to the roll-out of the JRS discussing the possible effects on women and BAME people confirmed that sufficient regard had been had by the Treasury to the PSED.
Archer v The Commissioner of Police of the Metropolis: in 2012, aged 15, the Claimant was involved in an incident at a chicken shop in Woolwich where he was stabbed in the back and head by local gang-members. He was arrested on suspicion of violent disorder and possession of an offensive weapon, and subsequently detained pursuant to s.38(1)(b)(ii) Police and Criminal Evidence At 1984 (‘PACE’), which authorises detention where “the custody officer has reasonable grounds for believing that [the arrested juvenile] ought to be detained in his own interests.” He sought a declaration of incompatibility on the basis of Article 5 ECHR, together with damages for unlawful detention under s.8 Human Rights Act 1998. The court held that his detention had not been incompatible with Article 5 ECHR, and so he was not entitled to damages, nor was the impugned section of PACE incompatible with Article 5. In reaching this conclusion, the court followed IA v France, where it had been held that ‘own protection’ could be a ‘relevant and sufficient’ reason for detention. Although the detention was justified by the Claimant’s own protection, it was still ‘with a view to’ bringing him before a court, and therefore was “for the purpose of bringing him before the competent legal authority” under Article 5(1)(c)– even if but for the need to protect the suspect, detention would not have been necessary. Granting the declaration would have risked making it “impracticable for the police to fulfil their duties”.
ABC v Principal Reporter & Anor (Scotland): this appeal concerned the role of siblings in the procedures by which ‘children’s hearings’ in Scotland make compulsory supervision orders (‘CSOs’). The hearings in question are attended by the child in question, together with ‘relevant persons’, who must attend or face criminal sanction; ‘relevant persons’ are understood in the legislative scheme as persons who have had a significant involvement in the child’s upbringing, and therefore will ordinarily not include siblings. The Claimants, ‘ABC’ and ‘XY’, had not been deemed relevant persons in respect of their younger siblings who were made subject to CSOs. They argued that the legislative scheme was incompatible with Article 6 and Article 8, and that siblings should have procedural rights in relation to these hearings, in particular to attend and make representations. The court rejected this argument, noting that concerns about privacy and the dissemination of sensitive information outweighed the rights of siblings in these cases. However, Lady Hale and Lord Hodge emphasised in their judgement that there must always be a ‘bespoke enquiry about the child’s relationship with his or her siblings’ in each case.
Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: Lorie Shaull
Anti-racism protests, sparked by the death of George Floyd, continued across the world. This week much of the focus has been on statues commemorating controversial historical figures. In Bristol, campaigners toppled the statue of a 17th century slave trader called Edward Colston.
The move led to a debate about what ought to be done with such statues. The founder of the Scouts, Robert Baden-Powell, was accused of racism, homophobia, and anti-Semitism. Initially it seemed his statue would be put into storage, but following an outcry it has been boarded up instead. A number of other figures have received similar treatment, including Sir Winston Churchill.
In the US, it seems change is coming to policing. The Democratic Party is proposing a police reform bill which, if passed, would become the Justice in Policing Act of 2020. The Bill would ban chokeholds from being used, limit the use of military weapons, and restrict qualified immunity (the legal principle which has prevented many officers from being sued for alleged misconduct). President Trump confirmed that he ‘generally’ supported ending the use of chokeholds.
Protesters in Los Angeles on Saturday. Credit: The Guardian.
The usual purpose of these round ups is to try and avoid repeating the headline news of the previous week whilst instead summarising the key legal developments. There are some weeks, however, in which events tend to put the judgments of the Court of Appeal into the shade.
The death of George Floyd on May 25th not only placed concerns about policing attitudes and deaths in custody onto the front pages, but also shone a light on to wider systemic racism. Protests in response were ongoing as of Sunday, both in the USA and around the world. The use of force by police in the aftermath of demonstrations has been widely reported upon, particularly in the United States, where the extent of force deployed against the British media led to a formal raising of the matter by the British embassy in Washington. Continue reading →
There have been significant protests in the USA following the death of George Floyd. Mr Floyd, a black man, died after his neck was knelt on whilst he was being detained. Mr Floyd repeatedly said he couldn’t breathe, but despite this the position was maintained for several minutes.
Derek Chauvin, the white officer who detained him, has been arrested and charged with murder. Three other officers have been sacked. The County Prosecutor has suggested it is likely they will also be charged in due course.
The case has triggered widespread protests about the treatment of black people by the police. Previous incidents, such as the fatal shooting of Michael Brown, exacerbate concerns. Thousands also protested in London, where the march moved from Trafalgar Square to the US embassy (located in South London).
In the US the largely peaceful protests have been marred by looting and arson attacks. The police station in Minneapolis was set on fire. A number of US cities have imposed curfews which have been defied. Police have used tear gas and rubber bullets to try and control crowds.
A black CNN journalist and his camera crew were arrested by police whilst reporting in a protest in Minnesota. The group was later released and the governor apologised for the arrest.
It emerged this week that Dominic Cummings drove 250 miles from London to Durham with his wife and child to be with his parents, while his wife was experiencing symptoms of COVID-19. In so doing, Mr Cummings appears to have flouted the government guidance of which he was one of the architects. Leading Tory MPs have called for the Prime Minister to sack Mr Cummings, but he has refused to do so, saying that Mr Cummings “followed the instincts of every father and parent”, and “has acted legally, responsibly, and with integrity”.
Apparently in response to the incident, a rogue Civil Service employee tweeted from the official Civil Service Twitter account “Arrogant and offensive. Can you imagine having to work with these truth twisters?” The Tweet was swiftly deleted, and a Cabinet Office investigation is under way into how it was released.
The situation in Hong Kong has escalated again this week, as Beijing gears up to enact Article 23 of the Basic Law, Hong Kong’s ‘mini-constitution’ of 1997, and impose national security laws to prohibit “treason, secession, sedition [and] subversion”. Protesters have been out in force in defiance of coronavirus restrictions, and police have repeatedly made use of tear gas, pepper spray, and water cannons. Notably, protesters have started to call for full independence for Hong Kong, which has not previously been one of the pro-democracy movement’s official objectives.
Conor Monighan brings us the latest updates in human rights law
In the News:
The long-delayed Domestic Abuse Bill returned to Parliament last week. It contains a number of measures, including a statutory definition of domestic abuse. The new definition will include not only physical violence, but also emotional, coercive and economic harm.
The Coronavirus has highlighted the importance of the Bill. Many have expressed concern about the impact of the lockdown on abused individuals. Victims are trapped in their homes and many domestic abuse services reduced their support.
Disturbingly, the National Domestic Abuse helpline has seen a 25% increase in calls, and the Metropolitan Police has reported a similar increase in charges and cautions.
In Parliament, a number of MPs spoke out about their experience of domestic abuse. Bolsover MP Mark Fletcher described growing up with an abusive stepfather. Rosie Duffield MP, who herself is a survivor, also spoke powerfully.
The world is reckoning this week with the human rights consequences of governmental efforts across the world to address the coronavirus pandemic. UN Secretary-General Antonio Gutierres has released a report on how the pandemic is becoming a ‘human rights crisis’. He highlights the disproportionate impact on minority communities, urging that national states of emergency must be proportionate, limited in scope, and alert to the risks of undue censorship and privacy violations. The report is available here.
Within the UK, the Equality and Human Rights Commission has been urging that more reasonable adjustments be made for the disabled and vulnerable in the handling of the pandemic.
In the sphere of criminal justice, the EHRC warns in an interim report that video hearings risk serious discrimination for people with learning disabilities, autism spectrum disorders, and mental health conditions. The report’s recommendations include ensuring disabled defendants have accessible information explaining their right to raise issues to do with participation, ensuring frontline professionals consider identifying people for whom video hearings may be unsuitable, and using registered intermediaries to support disabled defendants in video hearings. The report is available here.
The bandstand on Clapham Common, fenced off while people use the area for daily exercise. Photograph: Guy Bell/REX/Shutterstock. Credit: The Guardian.
Needless to say, the impact of Covid-19 dominated all aspects of life over the past seven days. Given that the week saw the Prime Minister admitted to intensive care with the virus before ultimately being discharged home, this is unlikely to be much of a revelation. The UK Human Rights Blog has published many articles looking in detail at some of the legal challenges posed by Covid-19 and the Government’s response to the pandemic. Of note this week:
Dominic Ruck Keene looks at potential legal challenges to Government policy in respect of coronavirus – here;
Robert Craig considers whether the Coronavirus Regulations might be ultra vires – here;
Darragh Coffey explores the provisions of the Coronavirus Act 2020 – here;
Rosalind English reviews a paper published by the Society of Conservative Lawyers on the consequences of coronavirus for the traditional principle of rule of law – here;
The Royal College of Nurses issued guidance to its members advising them that they could “as a last resort” refuse to treat patients suffering from Covid-19 if they are not given adequate personal protective equipment; and
Police came under increased scrutiny with regards to the exercise of their powers to enforce social distancing measures. The Chief Constable of Northamptonshire had to clarify statements that suggested officers may resort to checking the trolleys of grocery shoppers to determine if items purchased were “essential” or not.
Police officers direct traffic in the wake of new legislation
In the News
In the past week, Covid-19 has once again dominated the news, effectively occluding all other topics. Given that Monday evening saw leaders including Emmanuel Macron, Michel Barnier, Donald Trump and Sir Keir Starmer expressing their hopes for Boris Johnson’s swift recovery after his sudden removal to intensive care, this dominance does not seem disproportionate.
Conor Monighan brings us the latest updates in human rights law
In the News:
A landmark piece of legislation was passed this week, with significant consequences for civil liberties. The Coronavirus Act 2020, which was passed in only 4 days, is designed to mitigate the impact of Covid-19.
It gives the police a number of powers, including:
A power to restrict events and shut down premises such as non-essential shops (Schedule 22).
The ability to forcibly isolate or detain individuals who are thought to be at risk of spreading Covid-19.
A reduction in the care duties imposed on Local Authorities.
The Act also produces a number of changes designed to help workers:
Employers can reclaim the cost of paying statutory sick pay from HMRC.
Employees can claim sick pay from the day they stop working, rather than there being a delay of three days before payments are made.
The Act has attracted criticism for the range of powers it grants to the executive, and the speed with which it was passed. To help address these concerns, the Act will automatically expire after two years. Matt Hancock MP, the Health Secretary, also said that the Act will be debated and voted on every six months. This commitment is reflected in s.98. A statement of compatibility with the ECHR has been made. Continue reading →
The worsening of the Covid-19 pandemic seemed to relegate all other business to a position of relative insignificance this week. Undoubtedly the human, economic and social cost of the outbreak is already severe, with its impact increasingly felt across the globe. However, perhaps more than any other conceivable event, the progression of the disease casts a spotlight on numerous areas of legal controversy. It is hard to recall a post-war phenomenon which so frequently pits the rights and interests of individuals against those of broader society (more here). Indeed, the potential material for upcoming pupillage interview questions seems virtually inexhaustible, assuming that they too don’t fall victim to social distancing measures.
I will be posting a longer article on Covid-19 later today.
Conor Monighan brings us the latest updates in human rights law
In the News:
The Government’s ant-slavery tsar has severely criticised the government for failing to take action on child slavery. Dame Sara Thornton, who was appointed in 2019, said that the government was failing to make changes as promised.
Her concerns relate to the Independent Child Trafficking Guardian (ICTG) scheme, which is designed to give vulnerable children one-to-one support. Under the scheme, guardians assist children with matters ranging from GP appointments to dealing with social services. In 2016 ministers pledged to implement the scheme, but progress has since stalled.
Dame Sara said that she wrote to the Home Secretary in January outlining her concerns and highlighting the fact that the scheme only covers a third of the country. However, she has not received a response.
In a further development, Dame Sara Thornton has said that the power to intervene in child trafficking cases should be taken away from the Home Office. She argues that local authorities are much better placed to provide support. However, others have pointed out that councils lack the resources and power to adequately address child slavery.
The number of children referred to the Home Office as being potential victims of modern slavery appears to be rising. Over 2000 children were identified between September 2018 – 2019, representing a 66% rise on the previous year.
More from the Independent here and the Guardian here.
Microscopic view of Coronavirus, a pathogen that attacks the respiratory tract. Analysis and test, experimentation. Sars. 3d render
In the news
National concern about coronavirus rose further this week, as the tally of UK cases rose to 36. The government has said that it will publish an emergency ‘battle plan’ for tackling the virus, based on existing contingency plans for responding to a pandemic flu outbreak. This will include ministers responsible for coronavirus in each department, as well as a public information campaign run from the Cabinet Office; if the virus spreads further, it could also include banning big events, closing schools, and advising against use of public transport. When questioned yesterday on whether cities will be isolated, as in China, Health Secretary Matt Hancock was emphatic that no tactics are “off the table” in the government’s coronavirus strategy.
The Johnson government is facing major setbacks elsewhere this week.
Demonstrators protest government deportation flights outside Downing Street. Credit: The Guardian.
The last week provided no shortage of legal controversy, and posed the author of this blog considerable difficulty when trying to identify which developments deserved the most prominence. In analysing this avalanche of legal news, however, certain key themes started to develop.
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