Weekly Notes: legal news from ICLR, 13 July 2020

This week’s roundup of legal news and commentary includes crimes against emergency workers and shop staff, a pandemic boost to extremism, the rise of modern slavery, more lockdown litigation, and the threats to international human rights in Hong Kong and elsewhere.

Mona Lisa with facemask — photo by cottonbro from Pexels

Extremism

The Commission for Countering Extremism (CCE) has published a report looking at the way in which extremists have sought to exploit the current pandemic.

“Through the use of conspiracy theories and fake news, the Commission has found that hateful extremists have used divisive, xenophobic and racist narratives to sow division and undermine the social fabric of our country. The CCE warns that investing in counter extremism work and urgently publishing a new strategy is critical as extremists will seek to capitalise on the socio-economic impacts of COVID-19 to cause further long-term instability, fear and division in Britain.”

Examples of effects associated with the pandemic include “a worrying rise in hate crime and hate incidents towards Chinese people” including “a 900% increase in hashtags identified as hateful towards Chinese people on Twitter”; and the fact that almost a third of those who had heard about the 5G conspiracy theory (that 5G telecom signals cause or exacerbate coronavirus symptoms) found them credible. (At least 50 telecoms masts were the target of arson or vandalism in April.) There was also a rise in Anti-Semitism, Islamophobia, Far Right attitudes and Anti-Western (Islamic, eg ISIS) extremism, combined with conspiracy theories blaming various identifiable groups or individuals for the pandemic.

What should we do about it? First, work on detection and prevention:

“Policy makers should look to develop a system to classify dangerous conspiracy theories based on the harm they cause. This will help practitioners and social media platforms better identify harmful conspiracy theories before they escalate.”

Secondly, deal with the effects:

“Extremists seek to foster division within our towns and cities. Delivering events, campaigns and projects based on inclusion, shared values and community cohesion — both online, and where possible offline — are vital to help build resilience to extremism and to prevent extremists from gaining a foothold. These projects are often seen as a nice-to-have, but they are powerful ways to reduce the impact of extremism.”

Further reading:

Crime

The government, always keen to look tough on crime, has launched a consultation on doubling the maximum sentence for assaulting emergency workers. The announcement from the Ministry of Justice says:

“It delivers on a manifesto commitment to consult on tougher sentences, with ministers determined to recognise the debt of gratitude the public feels towards our emergency workers — for the courage, commitment and dedication they show every day in carrying out their duties, including during the Covid-19 pandemic.”

Currently, under the Assaults on Emergency Workers (Offences) Act 2018, the maximum sentence for common assault or battery is 12 months imprisonment. That Act was itself introduced in order to provide tougher sentences than would be applicable if the victim did not happen to be an emergency worker (which means basically police, prison, fire, rescue or public-facing health workers). Now there is a proposal to further increase the maximum (which is not, of course, the sentence generally meted out) to 24 months. So there!

The problem is, every time you jack up one sentence, you put all the others at a disadvantage. Are you saying this one is now much more serious than that one, or are they both pretty serious? By promoting the value of one type of victim, are you administering a “slap in the face” (addubg insult to injury) to another class of victim? And, assuming judges go along with this, and there isn’t a general compensation the other way via things like pre-sentencing reports, can the prisons actually accommodate the extra numbers?

Of course it’s horrible for emergency workers to be assaulted, as it is for anyone, and those who do it should be properly and proportionately punished. As should all criminals, if you can catch and convict them. The cynic will say, though, that this is a cheap way of looking nice to health workers, a bit like giving them a national clap, or buying little brooches; what might be rather more welcome, one suspects, would be the sort of pay rises that politicians seem happy to vote or agree to for themselves.

A few days earlier than the violence against emergency workers consultation was announced, the government had fanfared its “plans to crack down on abuse and violence against shopworkers”.

“The steps, which are detailed in the Home Office’s response to a call for evidence on the issue, are designed to improve support for victims and ensure perpetrators face justice. …

In addition, the Crime and Policing Minister will write to PCCs and Chief Constables underscoring the importance of working closely with local businesses to tackle this issue and emphasising that the theft of goods valued up to £200 from a shop should be prosecuted as a criminal offence.”

Kit Malthouse, Minister of State for Crime and Policing said: “Shopworkers are the beating hearts of our communities and violence or abuse against them is utterly unacceptable.”

This is all very well, but once you’ve prioritised emergency workers and shop workers, who else are you going to favour with enhanced victimhood, or award “beating heart of community” status? In the end, this is a bit “all shall have prizes”, which in the end renders the whole crime-punishment-do-something ratchet completely counterproductive. (Meanwhile, the backlog of criminal cases gets bigger and bigger and the only solution they can come up with is to make underpaid lawyers give up their weekend to help them clear it.)

Lockdown litigation

We reported last week on the The Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020 (SI 2020/ 685) reimposing a stricter regime after a recent spike in new cases in the city.

But on 8 July 2020, a letter has been sent to the Government seeking to judicially review the local lockdown imposed in Leicester City and parts of Leicestershire, on the grounds that the scientific evidence does not support such action being taken and that there have been concerns over local testing results (including the “Pillar 1” and “Pillar 2” swab testing).

The claimants are represented by Sophie Khan & Co, who stated the following in a press release:

The proposed challenge to the law is that on the basis of the report by the Rapid Investigation Team — Preliminary investigation into COVID-19 exceedances in Leicester (June 2020) dated 29 June 2020 there was no justification to close and/or to extend the closures and restrictions in Leicester City and parts of Leicestershire — Oadby and Wigston, Birstall, Thurmaston, Braunstone Town (including Fosse Park), Glenfield, Glen Parva, Leicester Forest East (east of the M1) and Thorpe Astley.

It says daily confirmed cases of Covid-19 in Leicester City had actually gone down before the lockdown was reimposed, and accordingly there was no “serious and imminent threat to the public health”. The downward trend in confirmed cases would have continued without the need to impose restrictions, and the The Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020 are therefore unlawful.

For more information on testing methodology, see COVID-19 testing data: methodology note (DHSC)

See also: Leicester lockdown: City-wide restrictions ‘not justified’ (BBC)

International Human Rights

The Foreign & Commonwealth Office announced the launch of a “ new ‘Magnitsky’-style sanctions regime” which will “target those who have been involved in some of the gravest human rights violations and abuses around the world”.

“Forty-nine individuals and organisations involved in some of the most notorious human rights violations and abuses in recent years have been designated for sanctions under a powerful new regime established today by the UK, the Foreign Secretary has announced.

The individuals and organisations are the first wave of designations under the new regime, with further sanctions expected in the coming months.”

In a statement issued soon afterwards, the Chair (Lord Neuberger) and Deputy Chair (Amal Clooney) of the High Level Panel of Legal Experts on Media Freedom welcomed the announcement by the FCO.

“As we stated in our report on sanctions published in February 2020, targeted sanctions against individuals are one of the most valuable tools available to states to impose accountability for human rights abuses and enforce international norms.”

That report was: Report on the Use of Targeted Sanctions to Protect Journalists (February 2020) drafted by Clooney.

“We also welcome the Government’s statement that it seeks to ‘champion human rights’ and that designations under the sanctions regime will be guided by the FCO’s ‘human rights priorities’ including ‘media freedom’ and the ‘protection of human rights defenders’ and journalists.”

The European Union has reiterated its grave concerns about China’s imposition of a National Security Law in Hong Kong, which was adopted without any meaningful prior consultation of Hong Kong’s Legislative Council and civil society. A Declaration of the High Representative on behalf of the European Union on the adoption by China’s National People’s Congress of a National Security Legislation on Hong Kong says

“There are concerns about the conformity of the new law with Hong Kong’s Basic Law and with China’s international commitments. In line with assurances that China gave in the past, the European Union considers it essential that the existing rights and freedoms of Hong Kong residents are fully protected, including freedom of speech, of the press and of publication, as well as freedom of association, of assembly, of procession and of demonstration. The provisions of the International Covenant on Civil and Political rights (ICCPR) as enshrined in Hong Kong legislation must continue to be fully applied.”

Following the imposition of the new law, the Financial Times reported that pro-democracy groups in Hong Kong, such as the opposition party Demosisto, had voluntarily disbanded themselves because of the difficulty of continuing to operate without endangering the personal safety of members. The new law threatens the independence of the judiciary by allowing Hong Kong’s chief executive to appoint judges to preside over national security related trials. Previously all judicial assignments were managed by the judiciary themselves.

The USA has already promised to implement sanctions (via its Hong Kong Autonomy Act) against China or pro-China businesses and individuals in Hong Kong and other nations have also spoken of sanctions. Both Canada and Australia have suspended their extradition treaties with Hong Kong and warned their citizens about travelling there. The Australian prime minister Scott Morrison has also said Australia would extend visas for Hong Kong skilled workers and graduates by five years, with a pathway to permanence thereafter.

The UK has promised to give all British Overseas Nationals and their dependants in Hong Kong the right to remain in the UK, including the right to work and study, for five years. After that, they will be able to apply for settled status, and after a further year, seek citizenship.

Free Movement has published a helpful Briefing: Hong Kong and British National (Overseas) status. BNO status is held by an estimated 2.9 million people in Hong Kong, although the actual number of valid BNO passports in circulation is far lower (currently around 350,000). The status was invented to deal with the handover of Hong Kong back to China in 1997. It required registration, so anyone who did not register at the time, cannot do so now.

Other news and commentary

In Shock to the system (Law Society Gazette), Marialuisa Taddia considers how how far the HMCTS reform programme has come since 2016 and how the exigencies of Covid-19 may have knocked it off course.

In her latest post on the Inside HMCTS Blog, Recovery in the Crown Court, the CEO of HMCTS, Susan Ackland-Hood has admitted that extended court hours, “Blackstone courts” and 1-metre social distancing will still not be enough to get the Crown court backlog to pre-pandemic levels (though as we pointed out last week, the pre-pandemic level was actually almost as bad, thanks to a continued under-provision of sitting days, which to be fair she acknowledges). She says:

“We know that working more hours in our buildings is possible, and can help us get through more work. Our modelling shows really clearly that unless we make all those changes available to us, we will not be able to recover to the level we need. …

So we need extended hours, even if we do everything else we can to the full. The constraint on us is space; and extended hours lets us do more in the limited space we have (and indeed in the new space we add). … So it’s not an either/or between extended hours and new buildings — it’s both/and.”

The problem is that even if the hours that are being extended are really supposed to be the court’s hours, not those of the lawyers, if the backlog is going to be cleared it means more cases done within the same period by a fixed or diminishing pool of lawyers, so in the end the lawyers will do extended hours too. As will the court staff, and the judges, and the probation officers, and police and the court reporters and so on.

The Court of Protection Handbook blog has published a Basic Guide to to the Court of Protection and glossary for lay people who may be going to court, or may be attending court. The guide is accompanied by a glossary of terms used, and links to other materials including free case reports and other resources. These include the Transparency Project’s guide to remote hearings.

It was probably launched too recently to have been included, but one resource they might like to add next time is the Open Justice Court of Protection Project, which we reported on in Weekly Notes — 22 June 2020. A particularly interesting blog post this week was derived from the discussions of a group of observers watching the same case: Hunger Striking for his Identity: Autonomy, Capacity, and Justice

CPS praised for innovative response to coronavirus pandemic, including home working and increased use of videoconferencing and its adoption of measures to maintain support for victims and witnesses.

“Her Majesty’s CPS Inspectorate (HMCPSI) commends the organisation’s digital capability and strategic planning, noting how the pandemic has ‘acted as a catalyst for innovation, leading to significant beneficial changes’.”

EncroChat, a bespoke secure messaging service used exclusively by criminals, was infiltrated and hacked by police and international law enforcement agencies. The National Crime Agency (NCA) says it has made 746 arrests, and seized £54 million ($68 million) in cash, 77 firearms and more than two tons of drugs during Operation Venetic, said to be the UK’s “biggest ever law enforcement operation”.

To consider the legal and evidential implications of this from a forensic point of view, see The hacking of EncroChat and the admissibility of evidence in legal proceedings by Alexandra Wilson, of 5 St Andrew’s Hill chambers.

“The issue of whether or not a device and the associated messages obtained from a hacked server can be attributed to a suspect is likely to be a key point in successfully arguing that evidence should be excluded under s.78 PACE . … It will not be farfetched to assert that an authority capable of hacking and penetrating a military grade PGP encrypted server is capable of altering the evidence being relied upon.”

Domestic abuse has been in the news recently because of the Spotlight Review, which has been the subject of a number of posts on the Transparency Project blog, including most recently a guest post by Ursula Rice, Solicitor-Advocate and Director at Family First Solicitors: Another view on the government ‘spotlight review’ report — on how the family courts treat domestic abuse

While on the subject, we’ve also become aware (via a recent tweet) of the lecture given by Cris McCurley, of Ben Hoare Bell LLP (Solicitors), for the Feminist Law Society in March, a video of which is available on their website: Domestic Abuse and Legal Practice Through A Feminist Law Lens

Legal Aid Lawyer of the Year awards 2020 took place virtually this year, for Covid reasons, but it was all recorded so you can watch the event on YouTube.

For reference as you watch, Legal Cheek has a list of the finalists.

The big international law firm Clifford Chance has outlined its Three-step Plan for Returning to the Office, as reported in The Lawyer. Currently most employees and partners are working remotely.

In phase 1, the firm will begin to allow people into its premises only for tasks deemed critical to the business. In phase 2, which will only happen after a sustained drop in infections, two teams (red team and blue team) will alternate in the office. Phase 3, which will begin only when the lockdown restrictions have been lifted, will see the offices open fully and the split teams disbanded, and all remote working arrangements will end.

The Lawyer report that this approach is different from that of other big firms, who have been opening their premises to staff who wish to stop remote working.

“When the Telegraph encourages us to believe that we have a problem with people arriving from Pakistan and spreading COVID-19, we know what it is up to.”

So begins Professor Brian Cathcart in an article from Byline Times reposted on Inforrm’s blog: The Telegraph, Covid-19 and Pakistan, the making of hate propaganda.

He explains how the Telegraph’s recent headline “Exclusive: Half of UK’s imported COVID-19 infections are from Pakistan” (swiftly repeated in the Sun and Mail Online) was essentially just stoking hatred” and bore no relation to reality”.

In his latest Chief Executive’s Blog post, Parole Board CEO Martin Jones explains the Board’s recovery strategy as the UK-wide lockdown begins to ease. He writes that

“We will only return to routine face-to-face oral hearings when it is safe to do so and will continue listing hearings but be ready to convert them to remote on a rolling basis to manage any potential extensions to, or rolling or local lockdowns.

Remote hearings have been appropriate for the majority of hearings, and paper assessment processes have continued.

For those cases that do require a face-to-face hearing, we will agree a way with HMPPS for how face-to-face hearings can take place safely in prisons with social distancing measures remaining in place.

Law and religion round-up — 12th July, from the excellent Law and Religion UK blog, discusses easing of the lockdown in the different jurisdictions of the UK, COVID-19 and the financial sustainability of places of worship, its effect on the Church of England (eg cancellation of the annual General Synod meeting in York this week), the humanist weddings case, and more.

ICLR reports ecclesiastical cases (the more important ones) in our Public and Third Sector Law Reports (PTSR) series, and we index judgments and case comments (often from this blog) in the citator on our online platform.

The Centre for Social Justice has published a report by the Modern Slavery Unit, It Still Happens Here: Fighting UK Slavery in the 2020s:

“Based on extensive work with frontline practitioners, local authorities and police forces, it combines powerful insights into the scale and nature of modern slavery with a clear agenda for what needs to be done next. It finds that a growing number of British citizens suffer trafficking and exploitation alongside so many victims from abroad. It reveals that human traffickers and organised crime groups are operating with impunity in many communities. And it goes on to make a persuasive case for eight recommendations on how to strengthen our fight against such largescale criminal abuse of vulnerable people.”

The UK Human Rights Blog provided the following summary of the report’s recommendations:

  • The government to produce a new cross-departmental modern slavery strategy;
  • Mandatory training to ensure that public authorities are aware of their duties under the Modern Slavery Act 2015;
  • The passage of the Modern Slavery (Victim Support) Bill 2019–20, to give victims in England and Wales a guaranteed right to support for a minimum period of 12 months;
  • The Department of Work and Pensions to develop more robust measures to identify cases of modern slavery; and
  • The introduction of measures to require greater transparency in supply chains, and the ability to scrutinise and hold to account companies that fail to tackle slavery in their supply chains.

In relation to the final recommendation, the report said that it was “particularly pressing given reports of the links between labour exploitation in garment factories and an outbreak of COVID-19 in Leicester.” The report refers to “claims that sweatshops in Leicester continued to operate during the pandemic, currently being investigated by the National Crime Agency”.

And finally

is from the Bar Council in response to an assertion by the Lord Chancellor that there was “overwhelming support” from the legal professions for extended court opening hours.

Mind how you go now. Thanks for reading.

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.