Weekly Notes: legal news from ICLR, 10 February 2020

This week’s roundup of legal news and commentary featuring, inter alia, a stateless bride, criminal voyeurism, illegal surveillance, and barristerial defamation.

Photo by Patrick Hendry on Unsplash

Immigration

The Special Immigration Appeals Commission (SIAC) has upheld the legality of the decision of the Home Office on 19 February 2019 to make an order depriving Shamima Begum of her British citizenship and to refuse her leave to enter the country even to pursue her appeal: Begum (Shamina) v Secretary of State for the Home Department (unreported) 7 February 2020. The “open” judgment has been released on the Judiciary website, and indexed on ICLR.3 but no official neutral citation is available. The hearing involved special advocates to deal with the secret evidence in closed hearings that could not be disclosed to the applicant or her open legal team, let alone the public. Some evidence was given in private to protect witnesses.

Shamina Begum is popularly known as the Jihadi Bride (or one of them) is the child, born in the UK, of parents born in Bangladesh who came to the UK and the mother, who has become a naturalised British subject, remains. Shamina herself lived in the UK until she was 15, when together with two friends, she made her way to Syria to join the Islamic State forces. She was reported to have married a Dutch-born convert who was fighting in the war there and to have had three children, all of whom have since died. She was eventually detained by Kurdish-led forces in the Al Roj camp in northern Syria, where she was discovered by a Times journalist.

The SIAC was concerned with three issues. First, would depriving her of British citizenship render her stateless, which would be unlawful under section 40(4) of the British Nationality Act 1981. The court held it would not, because she had or could have Bangladeshi nationality via her parents.

Second, would the decisions breach the Home Office’s own extra-territorial human rights policy by exposing her to a risk of death or inhuman or degrading treatment contrary to article 2 or 3 of the Human Rights Convention? (The articles themselves did not have extraterritorial effect, but the policy did.) The court held that it did not, because she was at no greater risk in her present situation by reason of the Home Office’s decisions than she would otherwise be by reason of her own actions (ie as a woman associated with ISIL and detained by the SDF).

Thirdly, could Shamina Begum have a fair appeal from where she was in Syria, ie without being allowed back into the country? While the court recognised that she could not have an effective appeal, it rejected the notion that exclusion from a country to which entry was barred, thus preventing meaningful participation in proceedings, automatically meant her appeal must succeed. That doesn’t mean her appeal failed, only that she failed on the three preliminary issues. The case is not over yet.

Begum’s solicitor, Daniel Furner of Birnberg Peirce, said she would “immediately initiate an appeal [against] Siac’s decision … as a matter of exceptional urgency”.

What is disturbing to some is the extent to which the decision appears to rely on the appellant’s own free actions, as a minor, possibly someone who had been groomed or radicalised, as a reason for her present predicament and absolving the state for any responsibility for her. The implication is that Bangladesh, a country she has apparently never even visited, should now take responsibility for her.

Further commentary and explanations can be found here:

Crime

In R v Tony Richards (unreported) 28 January 2020, the Court of Appeal, Criminal Division, held that a man who secretly videoed himself having sex with two women, who had consented to sex in exchange for money but had not consented to being filmed, could be charged with the offence of voyeurism under sections 67 and 68 of the Sexual Offences Act 2003*. The court rejected the defendant’s argument that even though the two women may not have consented to being filmed, if Richards was entitled to be in their bedrooms they could not have a reasonable expectation to privacy. The decision (for which we await a judgment transcript) has been reported in The Guardian: Filming partner without their consent during sex ruled a criminal offence.

The case is unusual because the court allowed an intervention in the appeal by a complainant in another case, Emily Hunt, who was pursuing judicial review proceedings against the CPS over its decision not to charge a defendant in a case in which she says she was filmed while being raped. Her claim was supported by the Centre for Women’s Justice, who reported that the CPS have now conceded the JR claim and are reviewing their policies on voyeurism following the Richards decision. Announcing the news, the CWJ said:

“The Crown Prosecution Service (CPS) has today accepted that their decision not to prosecute the man who filmed Emily Hunt whilst naked, without her consent, should be reconsidered.

Emily Hunt commented:

“Today we are all safer. Today we know that what happened to me is, irrefutably, illegal. I have hope that my attacker may finally — now nearly 5 years later — see justice and consequences for his actions. It has taken nearly 5 years to fight to get to this point. It should not take connections, education nor wealth to get justice. This decision was the clear, obvious and common sense answer to a question that no one else was asking: is it illegal to video someone naked without their consent? Because the answer is obvious: Yes, yes it is. And today the court agreed.”

Harriet Wistrich, director at the Centre for Women’s Justice said:

“We would like to know why the CPS chose to argue opposite points in two separate cases. As a publicly funded body, they have a duty to act consistently and in the public interest. In the context of significant reductions in the number of sexual offences prosecuted by the CPS, it is disappointing that they put limited resources into fighting cases for the sake of an argument where complainants have suffered significant trauma and deserve their cases to be put before a jury”.

[*NB since the relevant dates, sections 67 and 68 have been replaced by section 67A to incorporate the new offence of upskirting.]

Data protection

Liberty, the human rights organisation, and Privacy International, have announced a joint legal action against the intelligence agency MI5 following revelations that it systematically broke surveillance laws for years and kept this secret from the surveillance watchdog. The breaches emerged from a case last year in which Liberty brought a challenge against the Investigatory Powers Act 2016 (the so-called “Snooper’s Charter”) and earlier proceedings in which Privacy International brought a challenge against state powers to collect and store ordinary people’s data.

In Liberty’s challenge to the Investigatory Powers Act 2016 (IPA), the Government revealed that MI5 had been unlawfully retaining and mishandling the public’s data for years. Documents disclosed in the case revealed that MI5 not only broke the law, but they also failed to report this to the Investigatory Powers Commissioner’s Office (IPCO), despite knowing about their non-compliance for years.

The longstanding and serious failings of MI5 in relation to data stored in what it admitted were “ungoverned spaces” first emerged in Privacy International’s case (Privacy International v Secretary of State for Foreign and Commonwealth Affairs [2016] UKIPTrib 15_110–CH;[2017] 3 All ER 647*), started in November 2015, which challenges the processing of bulk personal datasets (BPDs) and bulk communications data (BCD) by the UK Security and Intelligence Agencies. In the course of those proceedings, it was revealed that PI’s data were illegally held by MI5, among other intelligence and security agencies. Then MI5 decided to delete PI’s data before the on-going investigation was completed.

In this new complaint, PI and Liberty argue that MI5’s data handling arrangements result in the systematic violation of the rights to privacy and freedom of expression (as protected in Articles 8 and 10 of the European Convention of Human Rights) and under EU law. The groups are also demanding that surveillance warrants granted during this unlawful activity are quashed and all record of the public’s illegitimately obtained or retained data is destroyed.

For more information, see:

Media

A year ago Dame Frances Cairncross published her recommendations for ‘a sustainable future for journalism’ in the UK. Her Government-commissioned report identified court reporting as an area of concern, citing its decline, and opportunities afforded by digital courts reform. The Government has now responded to the review in a statement published at the end of January.

In a recent roundup, Inforrm explained:

“Cairncross had suggested the government should found a new Institute for Public Interest News to coordinate between publishers, broadcasters, and online platforms to ensure a future for quality reporting. In its response, the government said it would not be taking forward the idea.”

There was an earlier Inforrm post about this: see The Cairncross Review: It was a con — Brian Cathcart

Judith Townend, on the Transparency Project blog, explored some of the points in the response about court reporting in Government responds to Cairncross — and it has something to say on court reporting

The Government’s response also covered by the national press, including The Guardian, the Press Gazette and City A.M.

Government

The Ministry of Justice has issued guidance on its Justice Impact Test (JIT), a tool that helps policy-makers across government find the best way of achieving their policy aims whilst minimising the impact on the justice system. It assesses policy proposals from other government departments to identify, quantify and cost their impacts on the civil and criminal justice system and covers: Legal aid; Courts, tribunals and the judiciary; Prosecuting bodies; Prisons and probation services. The scale of costs resulting from any additional impacts on the justice system, and plans for how they will be funded, will be subject to agreement between MoJ and the policy-owning department.

Brexit

The House of Commons Library has published a briefing paper entitled Brexit next steps: The Court of Justice of the EU and the UK

It explains what role the ECJ / CJEU will play in the UK during the transition period and beyond. During the transition period nearly all EU rules will continue to apply to the UK. The jurisdiction of the CJEU in the UK will also mostly continue as it did when the UK was a Member State.

The transition period and the application of EU law in the UK ends on 1 January 2021 (unless extended). However, under the Withdrawal Agreement the CJEU’s jurisdiction continues beyond the transition period in some areas, as the briefing then goes on to explain.

Under the WA, the CJEU will no longer have general jurisdiction over the UK in relation to any acts that take place on or after 1 January 2021. Whether it will have any role to play in terms of oversight of any future relationship agreements between the UK and the EU will depend on what is negotiated.

Legal Professions

In Australia, a barrister given a bad review on Google has been awarded $750,000 in damages for defamation. Gordon Cheng, a Hong Kong born barrister based in Adelaide, lost about 80 per cent of his mainly Chinese clients between when the bad review was posted in October 2018 and when a former client made him aware of it in February 2019. The review was posted by Isabel Lok, who, Cheng said in his evidence in the South Australian Supreme Court, had never been his client. She posted, under a series of different names, a one-star rating of his business on Google in English and Chinese, along with an extensive negative review. Google removed the review in April 2019, but Ms Lok later posted similar reviews under two more names. She did not answer the summons or appear in court, nor was she represented. She will also have to pay costs.

Source: ABC news, Adelaide lawyer Gordon Cheng wins $750,000 defamation judgment over bad Google review

The report includes a link to an article titled How to write a negative online review and not get into trouble. Presumably the first tip might be not to write anything defamatory.

Middle Temple Library explains in a recent blog post the business of becoming a barrister. It begins rather ominously:

“The path to the Bar has long been fraught with obstacles. Barriers to admission to an Inn of Court, the conditions imposed on those studying, and the requirements for Call to the Bar, have evolved over the many centuries, but rarely have things been straightforward.”

You’ll be relieved to hear that all this was in the past, and that the process is now rather less daunting. The post describes the process of membership and call from the earliest recorded existence of the Inn as “a voluntary association of lawyers occupying the lands West of Temple Church following the vacation of the Knights Templar”. Certain traditions remain to this day — that of dining in hall and participating in training sessions, and others have been added over the years. What remains is that call to the Bar of England and Wales is still managed by the Inns of Court.

To find out about the present day process of becoming a barrister at Middle Temple, see the main website: joining the Inn.

Legal Futures reports that, from May this year, written pupillage agreements will become compulsory. The Bar Standards Board will also require chambers and other Authorised Education and Training Organisations (AETOs) to recruit pupils in line with the Pupillage Gateway timetable in order to make pupillage recruitment fairer and more consistent.

The BSBs announcement follows a period of engagement with the profession and other key stakeholders during 2019 about the proposals, which along with other recent changes introduced by the regulator, aim to make training for the Bar fairer and more accessible.

Some recent reads

The January/February 2020 issue is now out, containing a number of interesting articles including two by ICLR staffers:

The Transparency Project’s roundup of family law cases covered, discovered and mis-covered in the media. It aims to “correct, clarify and comment on media reports of family court cases, explain and comment on published family court judgments and highlight other transparency news”

Recent posts on the Transparency Project blog have also covered the radio drama, Life Chances, broadcast on BBC Radio Four on 13 January and Mediation’, broadcast on BBC Radio 4 on Thursday 16 January, both as part of the ‘Behind Closed Doors’ series.

Angus McCullough QC, on the UK Human Rights Blog, notes that

“The Government has still not implemented the review of Closed Procedures that Parliament had dictated should take place when passing the Justice and Security Act 2013. A review is required to cover the first five years after the Act came into force, and should have been completed “as soon as reasonably practicable” thereafter. That period expired in June 2018, and there are still no signs of a reviewer being appointed.”

McCullough himself acts as a Special Advocate in closed proceedings, and was involved as such in the case of Shamima Begum (above). He explains what it involves and about Closed Material Procedures (CMPs). He recalls the importance of open justice (a matter frequently commented upon on the ICLR blog) and that “fundamental principle of fairness in legal proceedings is that a party should know the evidence and case against them”. CMPs involve a departure from both. Hence the need for the long-promised review. However,

“The series of apparently formulaic and uninformative ministerial answers to questions from Parliamentarians seeking to establish when the Government is proposing to comply with an obligation imposed on it by Parliament is not uplifting. Nor, perhaps, does it give much reassurance as to the effectiveness of the Executive’s accountability to Parliament in an area of legitimate public concern and debate.”

See his post: “Secret Justice”: An Oxymoron and the Overdue Review

Dates and Deadlines

Middlesex University — Thursday, 27 February 2020, 09:15–13:30

School of Law Roundtable Seminar aiming to bring together an audience to converse candidly about criminal justice issues, to highlight detail in regard to sentencing law and policy that have direct and negative impacts on the size of the prison population and which can feasibly be altered to lower the persistently high prison population.

Chaired by Dr Jenni Ward (Senior Lecturer in Criminology, Middlesex University) with speakers Rory Stewart ( Previous Prisons Minister, London Mayoral Candidate); Nick Hardwick (Previous Chair of the Parole Board and Head of HM Inspectorate of Prisons, Professor of Criminal Justice, Royal Holloway University of London); Nicola Padfield (University of Cambridge); Dominic Goble and Quentin Goodman (Northamptonshire Bench Chairman Midlands Region, Operations manager, Northamptonshire Youth Offending Team); Matt Cracknell (Associate Lecturer in Criminology, Middlesex University); Junior Smart (Founder of SOS Project, St. Giles Trust).

Tickets via Eventbrite.

And finally…

recalls one of our greatest judges, making a joke at the expense of his former profession

That’s it for this week. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.