In the news:
On Thursday, the Crown Prosecution Service announced that they would no longer prosecute migrants uninvolved in any criminal activity other than illegal entry to the UK. The development, supported by the notion that these cases can be better dealt with by administrative deportation than by prison overcrowding, is being widely reported as a blow to the Home Secretary’s Tuesday announcement of the Nationality and Borders Bill. The Bill seeks to further differentiate between migrants who enter the UK illegally and those who do not. Significant changes introduced by the new legislation are the increase of the maximum sentence for illegal entry from six months to twelve, introduced at clause 37, and the removal of protections for migrants who are escorted to the UK by the Border Force, who currently technically enter the country legally. The Bill will require that migrants have prior authorisation to enter the country to avoid entering illegally. How the CPS guidance, apparently adopted after ‘close consultation with the Home Office’ will interact with the new law, if passed, remains to be seen.
Kenan Malik writes in the Guardian that such changes are unnecessarily restrictive, given the difficulty in obtaining prior authorisation when such migrants are genuine refugees, who can hardly be expected to obtain appropriate documents from states actively engaged in their persecution. Clause 34 of the Bill also attempts to gloss Article 31 of the Refugee Convention, requiring that asylum seekers demonstrate that they could not have reasonably been expected to seek the protection of any country they passed through before entering the UK. Freemovement.org reports that much of the Bill does not actually substantially change existing legislation, and new powers to remove migrants will ultimately still depend on agreements with other countries to accept the return of asylum applicants.
In other news:
- The Observer revealed on Saturday that the Criminal Cases Review Commission is in the process of re-examining a number of murder convictions in light of Sally Challen’s recent appeal and retrial for the murder of her husband in 2010. Challen’s appeal relied on the new developments contained in s.76 of the Serious Crime Act 2015, which introduced the offence of coercive control. While the law previously recognised ‘battered person syndrome’, the new law focused on psychological control rather than physical abuse. In combination with new psychological evidence, Sally Challen was released following her retrial due to her time served and her successful defence of provocation, now able to encompass coercive control.
- Three black men, Courtney Harriot, Paul Green and Cleveland Davidson have had their 1972 convictions quashed by the Court of Appeal after it heard of their framing by corrupt police officer Derek Ridgewell, who himself died in prison in 1982. Ridgewell became notorious for making false allegations against young black men, and is known to have been dishonest for decades. Ridgewell’s activities in the 1970s are said to have significantly affected the entire lives of innocent men.
In the courts:
This is the latest in the Child Tax Credit litigation where the challenge was against the two child limit for the individual element of the benefit. The case touches on Art 12 as well as the conventional Art 8 and 8 & 14 arguments.
As David Anderson QC tweeted on Friday: “[This ruling] sets out red lines on the use of unincorporated treaties and parliamentary materials, and principles for determining claims that social welfare laws indirectly discriminate on non-suspect grounds.”
AB, R (on the application of) v Secretary of State for Justice [2021] UKSC 28 (9 July 2021)
The Supreme Court established in this ruling first, that the solitary confinement of any person under 18 automatically violates article 3 of the Convention; or, alternatively, that such treatment can only be regarded as compatible with article 3 of the Convention if there are exceptional circumstances which render the treatment strictly necessary.
The Court observed that the requirement of the Human Rights Act for domestic courts to take into account the jurisprudence of the Strasbourg Court, does not mean that the domestic courts should “substantially develop” the European Court’s case law.
Parliament’s purpose in enacting the Human Rights Act was to ensure that there is correspondence between the rights enforced domestically and those available before the European Court, not to provide for rights which are more generous than those available before the European Court [55].
In AA (Sudan) v Secretary of State for the Home Department [2021] EWHC 1869 (Admin), the Administrative Court found that the Home Secretary must exercise best efforts to bring a non-Arab Darfuri man who claimed to be a victim of slavery in Libya back from France. The Claimant was returned to France, where his first asylum application was rejected, after a screening interview in the UK failed to identify the Claimant as a victim of modern slavery. The Claimant is currently liable to be removed from France to Sudan at any time. He argued that the screening interview was conducted without his being asked the key questions of “why have you come to the United Kingdom?” and “please outline your journey to the United Kingdom“. These questions were a part of the Defendant’s published policy at the time of the interview and were omitted as a part of a secret policy, admitted by the Defendant. The court reiterated the law following Lumba -v- Secreatry of State for the Home Department [2012] 1 AC 245, that an unpublished policy must not be inconsistent with a published policy, and asserted that the Claimant had given believable evidence of his being tortured and trafficked. Although the Claimant initially denied being a victim of ‘exploitation’, he had asserted that he had been tortured, which accrued no follow-up questions. The indirect questions omitted were to give an opportunity for discourse which was denied to the Claimant.
In Madison v Government of Australia [2021] EWHC 1900 (Admin) the government of Australia sought the extradition of the Appellant, who was convicted in 2006 of indecent assault, buggery and rape, committed in London between 1993 and 1998 against two teenage male complainants. Only after this did the authorities in Western Australia discover his location, and now seek to prosecute him for 36 additional charges of sexual offences committed between 31 and 38 years ago. The Appellant attempted to prevent his extradition on the basis that these offences were time-barred under section 82 Extradition Act 2003. However, the time bar only operates where it would be ‘unjust or oppressive’ to return a requested person. The term ‘unjust’ refers primarily to the legal procedures and protections in place in the requesting state, complicated in this instance by the intervening death of one of the Appellant’s accusers, whose live evidence would likely have been ‘sole and decisive’. Unsurprisingly, the court determined that the law in Australia had sufficiently similar safeguards for the admittance of hearsay evidence, and so there was no reason to find that a fair trial could not take place there. The decision was therefore sent to the Secretary of State for her determination.
On the UKHRB:
- 1COR’s Rosalind English examines the High Court’s decision in Abbasi & Anor v Newcastle upon Tyne Hospitals NHS Foundation Trust [2021] EWHC 1699 (Admin), where the Article 8 right to privacy and the Article 10 right to freedom of expression were balanced in the context of reporting restrictions on the identities of clinicians involved in the end of life treatment of children.
- 1COR’s Charlotte Gilmartin considers the ECHR case of S.W. v United Kingdom in which the UK has been ordered to pay damages to a social worker who was unfairly accused of professional misconduct following childcare proceedings involving sexual abuse.
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