Round Up


The Weekly Round-up: A-level Results, Facial Recognition, and Special Educational Needs

17 August 2020 by

Photo: Pixabay

In the news

This week has been awash with controversy over an unexpectedly harsh set of A-level results, with GCSEs set to follow this Thursday. Because students could not sit exams this year due to COVID-19, results were calculated on the basis of an algorithm taking into account mock exam results, predicted grades, and schools’ past performance. As a result, 40% of students have had their predicted grades lowered, with many losing university places as a result. Yet in a tour-de-force of algorithmic elitism, the number of independent school students securing A* or A grades has increased by 4.7%, compared to only 2.2% at state schools, and 0.3% at further education colleges. Multiple legal challenges are in contemplation; Jolyon Maugham QC’s Good Law Project is supporting 7 students in a judicial review of the exam regulator Ofqual’s failings.

Algorithmic injustice has been in the courts this week too, as civil liberties campaigner Edward Bridges won an important victory in the Court of Appeal against the use of facial recognition technology by the police.

Mr Bridges had launched a judicial review against the use of ‘AFR Locate’ facial recognition technology by South Wales Police after being photographed by automated cameras when Christmas shopping and subsequently when involved in a peaceful protest. His challenge had been dismissed by a Divisional Court in September 2019. The original decision was covered on the blog by Sapan Maini-Thompson here.


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Round Up 3.8.20 – Sentencing in the criminal courts becomes the focus of public attention…

3 August 2020 by

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British SAS soldiers in Helmand province, Afghanistan. Credit: The Guardian

The final week of the legal term was set against the backdrop of new restrictions on the ability of different households to meet across a large part of northern England. The main restriction takes the form of a prohibition on individuals entering households other than their own to visit friends and family. As has become traditional over the last few months, the guidance was announced with a promise to bring forth new laws in the future, to confer actual powers of enforcement.

In addition, many of the week’s dominant news stories carried a prominent legal flavour:


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Family Court Guilty of ‘State Sanctioned Abuse’? Plus Hate Speech and Judicial Bias- the Round Up

26 July 2020 by

Conor Monighan brings us the latest updates in human rights law

In the News:

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Credit: Colin

The public consultation on Scotland’s controversial Hate Crime and Public Order (Scotland) Bill has closed. In summary, the Bill:

  • Adds age as a possible basis for hate speech.
  • Enables ministers to use regulation to add to the list of possible ‘victims’ of hate crime. There are already suggestions that misogyny will be added.
  • The definition of hate crime is extended to include ‘aggravation of offences by prejudice’.
  • Creates a new crime of ‘stirring up hatred’ against any of the groups which the Bill protects.
  • Updates and amalgamates existing hate crime law.
  • Abolishes the offence of blasphemy.
  • In addition, a new offence of misogynistic harassment is being considered.

The Bill was created following Lord Bracadale’s independent review of hate crime law. Official figures show that hate crime is on the rise in Scotland and the Bill seeks to address this.

However, the Bill has caused considerable concern. Many have suggested that the Bill unduly restricts freedom of speech. The President of the Law Society of Scotland, Amanda Millar, said she had “significant reservations” and indicated that “views expressed or even an actor’s performance” could result in a criminal conviction.

Groups ranging from the Catholic Church to the National Secular Society have also spoken against the plans. The Scottish Newspaper Society expressed reservations.

Some have claimed that JK Rowling, who recently tweeted her views about transgender rights/ feminism, could be imprisoned for 7 years under the Bill. Opponents also point to the experience of Threatening Behaviour at Football and Threatening Communications Act 2012, which sought to target football hooliganism. The Act was later repealed due to concerns about freedom of speech and its ineffectiveness.

James Kelly, Labour’s justice spokesman, has pointed out that the Bill would not require ‘intention’ in order for criminality to be found. He suggested that religious views could be negatively affected by the proposals.

In response, the Scottish government points out that the Bill makes clear that criticising religious beliefs or practices does not, in itself, constitute a criminal offence. Ministers have also emphasised that the draft legislation seeks to protect minorities and oppressed groups.

In Other News….

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The Weekly Roundup: Shamima Begum, Paedophile-Hunters, and Criminal Justice

20 July 2020 by

Photo: Arno Mikkor

In the news

The future of the UK response to COVID-19 remains uncertain. Prime Minister Boris Johnson has hinted that things will be ‘significantly normal’ by Christmas, and has emphasised his reluctance to impose a second national lockdown, comparing such a threat to a ‘nuclear deterrent’. Yet the government’s chief scientific adviser Sir Patrick Vallance says there is a risk we will need another national lockdown in the winter months. Mr Johnson has said the advice on working from home will change on 1st August to ‘go back to work if you can’; Sir Patrick Vallance says there is ‘no reason’ to change that advice. Confusion continues to reign.  

Access to justice has been a major casualty of the pandemic, with jury trials suspended and a steady backlog of cases building up in the courts. To address that backlog, the government is now opening 10 temporary ‘Nightingale Courts’, which will hear civil, family, tribunal, and non-custodial criminal cases. Chair of the Criminal Bar Association Caroline Goodwin QC says that these courts are ‘just a start’, and that further buildings and a renewed focus on criminal trails will be needed to clear the backlog. Justice Minister Robert Buckland has already warned that the backlog may not be cleared until 2021.

The Court of Appeal has granted Shamima Begum leave to enter the UK in order to pursue her appeal against the Home Office’s decision to remove her British citizenship, overruling part of the decision made by the Special Immigration Appeals Commission. The court’s ruling is discussed in more detail below, and in an article by Marina Wheeler QC.


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Round Up 6.7.20 – A quiet week in the courts but not in the news…

6 July 2020 by

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Protesters in Hong Kong. Credit: The Guardian. 

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…

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The Weekly Roundup: Workers’ Rights, Criminal Procedure, and Compulsory Supervision Orders

22 June 2020 by

Photo: Wikimedia Commons

In the news

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.  

Changes to Policing, Consent, and Three Landmark Cases- the Round Up

15 June 2020 by

Conor Monighan brings us the latest updates in human rights law

In the News:

floyd

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.

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Round Up 8.6.2020 – George Floyd protests spread worldwide, Hong Kong concerns rise and the UK eases coronavirus lockdown…

8 June 2020 by

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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.
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London- the Libel Capital of the World? Plus a Landmark Consumer Rights Case and Changes to US Media Law: The Round Up

1 June 2020 by

In the News:

floyd

Credit: Lorie Shaull

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.

In Other News….

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The Weekly Round-up: Dominic Cummings, Hong Kong, and Immigration Law Challenges

25 May 2020 by

Photo: Wikimedia Commons

In the news

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.


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Transgender Rights, an Inquest Update, and the British Judge Suing the EU- The Round Up

4 May 2020 by

Conor Monighan brings us the latest updates in human rights law

In the News:

index

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.

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The Weekly Roundup: Coronavirus Human Rights Implications and the Right to Rent

27 April 2020 by

Photo: Eric Bridiers

In the news

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.


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Round Up 13.04.20 – The work of the courts continues despite the impact of Covid-19…

13 April 2020 by

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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;
  • 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.

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The Round Up: Police State Debates and Post Office Delays

7 April 2020 by

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.


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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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