Weekly Notes: legal news from ICLR, 15 March 2021
This week’s roundup of legal news and commentary includes public protest, criminal nuisance, human rights and open justice. And don’t forget the ICLR Pupillage Award is still open to applicants.
Freedom of assembly
The human right of peaceful assembly and the need to restrict public gatherings under lockdown regulations came into conflict last week as the Metropolitan Police Service refused to allow a vigil on Clapham Common in memory of Sarah Everard, whose recent abduction and murder has given rise to a wave of public anger and concern over women’s safety in public spaces. A man has been arrested and the matter is the subject of a contempt of court warning and media advisory notice by the Attorney General, so we say no more about the offence itself.
The vigil on Saturday 13 March was organised by a group called Reclaim These Streets who, according to their solicitors, Bindmans, had sought to
“hold the vigil for Sarah and for all women who feel unsafe, who go missing from streets, or who face the fear of violence every day. They hope to provide an opportunity for women to come together at this moment of national grief, and to raise awareness, and provoke change in attitudes towards and understanding of the pervasiveness of threats faced by women.”
According to Bindmans, they communicated their intentions to Lambeth Borough Council and the MPS, “who at first appeared supportive” but then opposed the vigil on the grounds that it would contravene the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (the “All Tiers Regulations”) and suggested the organisers could be in breach of the Serious Crime Act 2007. The organisers, represented by Bindmans and barristers from Doughty Street Chambers, then applied to the Administrative Court for a declaration that the All Tiers Regulations had to be read subject to the Human Rights Act 1998 and, in essence, that such a vigil would not be unlawful. You can read the grounds of application here. You can see their crowdfunding appeal here.
The matter was heard on Friday 12 March and an extempore judgment given by Holgate J, who declined to intervene or make a declaration, but did state as a matter of law, that not all protest would be illegal under the regulations; that the regulations must be read consistently with rights under article 10 (freedom of expression) and 11 (freedom of assembly) and therefore such a protest would not be prohibited unless it was necessary and proportionate to do so, and a person participating in such a protest would have a reasonable excuse for being there. Moreover, any blanket ban on protests (ie without considering whether it was necessary and proportionate) would be unlawful, the judge indicated, and indeed the police conceded. But he was not in a position to make that determination in the present case.
What the organisers and their advisers had expected was that, following the court ruling, the police would engage in constructive discussions over whether and how the vigil could take place. But those attempts failed and the police did not permit the vigil. Reclaim These Streets therefore cancelled their plans and urged people to do a candlelit doorstep vigil instead.
Despite this, a large number of mainly women did assemble on Clapham Common, around the bandstand, where a growing pile of floral tributes and messages were left, including (it was widely reported) one by the Duchess of Cambridge, Kate Middleton. During the afternoon there was some police presence, but this intensified at nightfall, and for reasons about which a number of politicians including the Home Secretary and Mayor of London have called for an explanation, the police forcefully dispersed the crowd, making a number of well publicised arrests in the process.
Vigils due to be held in Bristol, Brighton and other locations were also cancelled or postponed following police objections, though some gatherings did still take place, for example in Nottingham where the police appear to have arrived at a constructive solution with the organisers.
- BBC, Sarah Everard vigil organisers lose court challenge and Sarah Everard: Met criticised over Clapham vigil policing
- UK Human Rights Blog: Sarah Everard vigil cancelled
- Guardian, Sarah Everard: Reclaim These Streets cancels its south London vigil
- Paul Gilbert, LBC Wise Counsel: A time to reflect, but also to play my part (reflecting on fact that “Our institutions of Government, of justice, of law enforcement, of education and even of health care have evolved over centuries carrying a legacy of institutional misogyny”)
- Open Access Government: Criminal barrister says UK normalises “violent male behaviour towards women” (Tim Kiely, Criminal Barrister at Red Lion Chambers, discusses the #CurfewForMen as a wake-up call on societal acceptance of “violent male behaviour toward women”)
- David Allen Green, Law and Policy Blog: The ugly scenes from the Clapham Common protest tell us about wider policing problems — and how policing the coronavirus regulations is being treated as a public order matter instead of a public health problem
Police, Crime, Sentencing and Courts Bill
On Sunday human rights barrister Adam Wagner tweeted as follows:
“You may think the events of the past few days have shown beyond doubt that the police cannot be trusted to protect our free speech rights. Well, it’s about to get worse.
The Police, Crime, Sentencing and Courts Bill going through Parliament tomorrow would hugely expand their powers to allow them to stop protests which would cause ‘serious unease’ and create criminal penalties for people who cause ‘serious annoyance’.
This would effectively put the current situation where Covid regulations have given police too much power over our free speech rights on a permanent footing.”
The Police, Crime, Sentencing and Courts Bill is a massive instrument bringing together a number of areas of justice policy. The draconian provisions dealing with public order (under Part 3), which Wagner and others have highlighted, seem to have been prompted by problems in policing recent big protests such as those organised by the Black Lives Matter movement and Extinction Rebellion. The implication is that the British public, having grown accustomed to draconian lockdown regulations over the last year, temporarily curtailing many freedoms by reference to a utilitarian notion of public good, will now quietly acquiesce in the same restrictions being made permanent. The problem is not with the public’s acquiescence, though, but with the ability of Parliament meaningfully to scrutinise, check and balance the powers of the executive — something that has also been woefully lacking, as regulations made with emergency powers have still not been properly scrutinised a year later.
The Bill has been, er, billed (by the government) as “Cutting crime and building safer communities … as the government delivers on its pledge to restore confidence in the criminal justice system.” It even has its own logo:
According to the announcement by the Ministry of Justice and Home Office,
“The Police, Crime, Sentencing and Courts Bill seeks to equip the police with the powers and tools they need to protect themselves and the public, while overhauling sentencing laws to keep serious sexual and violent offenders behind bars for longer, and placing greater emphasis on rehabilitation to better help offenders to turn their lives around and prevent further crimes.”
While these aims may be laudable, there does seem to be a risk that greater powers will be open to abuse, reducing personal freedoms, while endemic lack of resources will hamper the implementation and enforcement of measures that might make the public safer.
As its name indicates, the Bill covers a number of different areas, including police, crime, sentencing, rehabilitation of offenders and the courts. The policy background to the Bill is described in the Explanatory Notes. This includes
- A “police covenant”, similar to that for the armed forces, enhancing support for the police and their families, on which the Home Secretary would be required to report annually to Parliament;
- Tougher sentences for assaults on police and emergency workers;
- Provisions to enhance the government’s Serious Violence Strategy and tougher policies on knife crime and homicide;
- Legal powers to extract information from complainants’, witnesses’ and others’ digital devices to help prevent, detect, investigate and prosecute offences and prevent harm.
- Extending the scope of the courts to deal with criminal damage to statues and memorials, removing a monetary value threshold that might otherwise limit such powers;
- Extending the use of Video Remand Hearings by empowering Prisoner Escort and Custody Service (PECS) offices to manage and oversee such hearings;
- Legislating for a simpler framework for Out Of Court Disposals (OOCDs), reducing from six to two the different types, ie community and diversionary cautions, in response to a review of the process;
- Increasing the minimum sentence for particular offences and the minimum period served before release on licence, plus other provisions in relation to whole life orders, detention at Her Majesty’s pleasure (DHMP) and life sentences.
- Provisions to abolish automatic halfway release for certain types of serious offence;
- Various changes to Parole Board powers and procedures including a new process of enabling its decisions to be reviewed without the need to refer them to court;
- Use of polygraph testing as a licence condition for sexual or domestic abuse offenders;
- Tougher community sentences and changes in relation to youth custody and youth justice.
- New provisions for the long term management and supervision of sex and terrorism offenders and for the swifter rehabilitation of other, non-violent offenders;
Courts and open justice
In relation to the courts, there are two areas of interest. The first is the introduction of provisions enabling the further development and evaluation of Problem-Solving Courts. This will include:
- giving the court a power to regularly review community and suspended sentence orders and to initiate breach proceedings at a review hearing;
- expand the power to test for illicit substances outside the provisions of Drug Rehabilitation Requirements; and
- enable the court to impose short custodial penalties for non-compliance.
There is also to be provision for sign-language interpreters to enable deaf persons to participate as jurors in trials.
Finally, there will be provisions making permanent and extending some of the temporary provisions introduced by the Coronavirus Act 2020 to enable remote hearings to be live-streamed or recorded and to provide safeguards against unauthorised recording or broadcasting of such hearings. According to the notes:
“Further measures focus on permitting and facilitating the remote observation of proceedings across the courts and tribunals using video and audio links in order to uphold the principle of open justice. These measures will enable criminal, family and civil courts, coroners, unified tribunals, employment tribunals and the Competition Appeal Tribunal to provide transmissions of proceedings, by audio or video live link, either to designated premises or to individuals who have requested access and have identified themselves to the court or tribunal. Once enabled in secondary legislation these powers may allow open justice to be upheld in this way in various types of hearings: e.g. wholly remote hearings; hybrid hearings (i.e. those taking place in a court room with some participants joining via audio or video links), and traditional (wholly in-person) hearings. This secondary legislation will be made by the Lord Chancellor in concurrence with the Lord Chief Justice or the Senior President of Tribunals as appropriate.”
The idea of transmitting proceedings “to designated premises” seems to hark back to the quaint notion, first introduced and discussed around the time of the Prisons and Courts Bill 2016, of relaying online hearings to “viewing booths” located in court buildings (referred to in that Bill as “designated live-streaming premises”), overseen by court staff to ensure no unauthorised photography or other contempt of court was being perpetrated. The need to trust the press and public to watch from their own socially distant locations during the pandemic would seem to have put paid to any such requirement, the number of detected abuses having been really quite low; but perhaps it has been retained out of an abundance of caution. Given the pressure of court buildings, the notion of devoting precious space to a viewing booth or room when people are now quite used to working remotely seems, also, rather extravagant. And in view of the strides already made in live-streaming (and catch-up viewing) of Supreme Court and Court of Appeal hearings, the proposed provisions for other courts and tribunals seem unduly timid and beset with “analog thinking”.
The 2016 Bill was lost in the “washup” before the May 2017 election, but many of the provisions necessary to enable remote video hearings and live-streaming for the purposes of open justice were resuscitated in temporary form via the Coronavirus Act. The PCSC will be third time lucky for these changes to be made on a permanent basis.
See also, on the Bill generally:
- Joshua Rozenberg, A Lawyer Writes: New powers to restrict assemblies, More than a nuisance and Whoever heard of a quiet protest?
- Obiter J, Law and Lawyers: Protest and the Police, Crime, Sentencing and Courts Bill (1) ~ Public Nuisance
- David Allen Green, Law and Policy Blog: The proposed new clause 59 offence of ‘intentionally or recklessly causing public nuisance’
- Prof David Mead, Protest Matters blog: Some initial thoughts on the Police, Crime, Sentencing and Courts Bill — the new public order powers in clauses 54–60
- Ian Dunt, Politics.co.uk: Silencing Black Lives Matter: Priti Patel’s anti-protest law
International Human Rights
Torture of political prisoner in Iran
Nazanin Zaghari-Ratcliffe, the British-Iranian charity worker who has now been released from her original five-year prison sentence for spying, now faces the uncertainty of a fresh charges for “spreading propaganda against the regime”. Both those charges and her original conviction for spying are widely regarded as bogus, and solely designed to detain her as a hostage in support of Iran’s (undisputed) claim to financial compensation over a military hardware contract dating back to the 1970s.
Boris Johnson (whose negligent conduct as Foreign Secretary in relation to her case was widely criticised at the time) urged Iran to release her “permanently”, tweeting:
“Pleased to see the removal of Nazanin Zaghari-Ratcliffe’s ankle tag, but her continued confinement remains totally unacceptable. She must be released permanently so she can return to her family in the UK, and we continue to do all we can to achieve this.”
Zaghari-Ratcliffe has been told that a verdict on the new charge will be announced within seven working days. According to REDRESS, the anti-torture group which has acted as her legal representative:
“Iran has never followed the rule of law in proceedings against Nazanin. Without proper legal processes, Nazanin is unable to effectively challenge the false allegations made against her and the outcome of the court hearings is entirely unpredictable.”
Moreover, it appears that she has been subjected to torture during her detention.
“This month, REDRESS provided evidence to the FCDO of Nazanin’s severe physical and psychological suffering due to Iran’s treatment, confirming that she has been subject to torture. REDRESS also again raised her case with United Nations experts. The UN Special Rapporteur on Iran expressed concern about the new court case before the UN Human Rights Council last week.
Nazanin’s ongoing detention has previously been found to be illegal under both international and Iranian law. The UN Working Group on Arbitrary Detention found in 2016 that her detention was arbitrary and requested Iran to release her, and a legal opinion commissioned by REDRESS in 2017 concluded that her detention was also illegal under Iranian law.
See also: The Times, How Nazanin Zaghari-Ratcliffe was hung out to dry by the British
Other recent publications
An amusing story by Joshua Rozenberg about the late Harman J, subject of a less than hagiographic (indeed barely respectful) obituary in The Times last week, and one of the least popular High Court judges of recent decades, whose few good judgments will not save a reputation for rudeness, arrogance and bad temper. Not much fun to be a law reporter in his court, excruciating to watch hapless counsel or solicitors being eviscerated for some trivial procedural hiccup — though like all bullies he could be charming if he chose.
Post-Brexit policy does not need to be like this — no, it really does not — but there are no other post-Brexit policies in town
David Allen Green on his Law and Policy Blog discusses the ongoing relationship between the UK and the EU and the personalities responsible for making it the way it looks likely to be. See also this earlier post on the same blog: The significance of the appointment of Lord Frost as a cabinet minister for Brexit
Ella Braidwood, on Each Other, discusses the human rights implications of climate change in the context of plans to open a new coal mine. See also BBC, Climate change: Six questions about the Cumbria coal controversy
Ruby Peacock, on the UK Human Rights Blog, on why we should replace ‘revenge porn’ with ‘image based sexual abuse’ and reform the mens rea of the Criminal Justice and Courts Act 2015.
The rise of online abuse in lockdown
Three linked articles by Alicia Mendonca-Richards from Farrer & Co republished on Inforrm’s blog:
- Part 1, how to deal with online harassment
- Part 2, how to deal with stalking
- Part 3, how to deal with revenge porn
Brian Cathcart, Professor of Journalism at Kingston University London, expresses his doubts about the government’s implementation of its much vaunted white paper on Online Harms. Article reproduced on Inforrm’s blog from Byline Times.
Dates and Deadlines
In fond memory of Lord Kerr JSC
HRLA (online) — Tue, 23 March 2021, 18:15–19:45 GMT
Panel discussion organised by Human Rights Lawyers Association to celebrate the life and career of Lord Kerr, former law lord and retired Supreme Court justice, who passed away in December 2020.
Featuring Angela Jackman, Caoilfhionn Gallagher QC, Darragh Mackin, Dinah Rose QC, Hugh Southey QC, Karon Monaghan QC, Margherita Cornaglia, Raza Husain QC, Ronan Lavery QC, Sonali Naik QC, Tom Hickman QC, Manjit S Gill QC. Chaired by: Aswini Weereratne QC. Introduced by: Shoaib M Khan.
Details via Eventbrite.
Survey: violence against women and girls
Consultation closing at 11:45pm on 26 March 2021
The Home Office is seeking your views to help inform the development of the government’s next Tackling Violence Against Women and Girls Strategy. They are particularly keen to hear from people who may feel underrepresented in previous strategies or who feel their circumstances were not supported by existing services.
Everyone aged 16 or over is welcome to contribute to the call for evidence, you do not have to have experienced violence or abuse to take part. You can participate in the call for evidence by completing the public survey.
Survey: domestic abuse and coercive control in family courts
Survey: by Candour TV, closing on Monday 5 April 2021
Anonymous survey for legal professionals dealing with cases of alleged domestic abuse and coercive control in the family courts, which fall under Practice Direction 12J. This survey is for a Channel 4 documentary, and aims to “to explore practices across England and Wales, again from the perspective of lawyers involved in family court work where PD12J applies” in order to better understand the impact on the welfare and safety of alleged victims and children. Details via this link.
Catullus: Shibari Carmina by Isobel Williams: Carcanet Books
Online — 24 Mar 2021, 19:00 to 20:00
Launch of Isobel Williams’s new poetry collection, Catullus: Shibari Carmina. Hosting the reading will be barrister and friend of the author, Catherine Rowlands of Cornerstone Barristers. The event will feature readings and discussions, and audience members will have the opportunity to ask their own questions. During the readings the English versions will be subtitled.
Registration for this online event will cost £2, later redeemable against the cost of the book. All attendees will receive the discount code and how to purchase the book during and after event.
Tweet of the week
is about pupillage: don’t be put off by rejection.
And if you are lucky enough to get a pupillage, depending on the amount you get paid, you could be eligible to apply for an ICLR Pupillage Award. Just one of the ways ICLR as a non-profit supports the legal profession.
That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.
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.