Weekly Notes: legal news from ICLR, 21 March 2022
This week’s roundup of legal news includes legislation on economic crime and on elections, international law and human rights, searching questions for the police, and some recent case law and commentary.
The Economic Crime (Transparency and Enforcement) Act 2022 received the royal assent last week, after being rushed through Parliament in less than a fortnight. In its announcement the government says the new legislation it will enable it to “move more quickly to impose sanctions against oligarchs already designated by our allies, as well as intensifying our sanctions enforcement” following the invasion of Ukraine.
The Act will also aim to tackle “suspicious wealth” and the secrecy around ownership by creating a new Register of Overseas Entities, requiring those behind foreign companies which own UK property to reveal their identities. Entities who refuse to reveal their ‘beneficial owner’ will face tough restrictions on selling the property and those who break the rules could face a fine of up to £2,500 per day or up to 5 years in prison. The Act will bring in reforms making it easier to obtain Unexplained Wealth Orders (UWOs) against those suspected of having acquired their assets unlawfully.
However, not everyone is impressed. Oliver Bullough, author of a recent book about London’s role as a money laundering hub, Butler to the World, explains how crooks and kleptocrats can easily evade the Act’s provisions, in The oligarch’s guide to getting round the UK’s economic crime bill (The Guardian).
- Institute for Government, Economic Crime (Transparency and Enforcement) Bill
The Elections Bill, introduced last year and currently going through the House of Lords, makes a number of important changes to election law, including the requirement to show ID at polling stations, changes to postal and proxy voting, campaigning and the rules on campaign spending and funding, and parliamentary oversight of the Electoral Commission. For more information see the Electoral Commission. Not everyone welcomes all the changes.
In Amending the Elections Bill: an update from the House of Lords, Maheen Behrana on the Best For Britain blog on how peers have been engaging in forensic discussion of each clause in the Elections Bill, proposing amendments and offering explanations as to why they oppose or agree with individual lines in the legislation, which “threaten to weaken our democracy”.
“Many Lords, with a range of political affiliations, have expressed deep concerns. It would stymie independent regulation of elections by reducing the impartiality of the Electoral Commission. It would reduce the influence of civil society by imposing burdensome administrative regulations on small third-party campaigners. It would prevent certain voices from being heard by giving Government ministers the power to ban campaigners. This Bill makes it look like the Government is scared of its own electorate.”
Health and Care Bill
The Health and Care Bill completed its Report stage in the House of Lords on 16 March 2022, during which their Lordships considered Amendment 170 which related to assisted dying. There is a discussion of this with extracts from the debate on the Law & Religion UK blog: Consideration of assisted dying at Westminster.
Iran hostages returned
Nazanin Zaghari-Ratcliffe, a British-Iranian woman who was arrested at Tehran airport in April 2016 after visiting her parents in Iran and charged with “plotting to overthrow Iran’s clerical establishment”, was released last week after spending six years in prison. She had been the subject of a long and well publicised campaign for her release, led by her husband, Richard Ratcliffe, and supported by Amnesty International and other organisations. (See Weekly Notes, 20 November 2017) In the intervening period, five foreign secretaries have claimed to be working for her release, but only the latest, Liz Truss, seems to have achieved it. (There was some suggestion that one of them, Boris Johnson, had actually made things worse by asserting in Parliament that she had been teaching journalism in Iran.) A press conference in which Mrs Zagari-Ratcliffe lamented the failure to resolve her case sooner has prompted criticism from some (mainly right-wing) quarters.
Also released last week was another British-Iranian detainee, Anoosheh Ashoori; but there remain others still detained in Iran, including Iranian-British-American wildlife conservationist Morad Tahbaz who was charged with “co-operating with the hostile state of the US”. The two releases were reportedly thanks to improving UK-Iran relations, including the settlement of an historic £400m debt owed by the UK to Iran since the 1970s.
- BBC: Nazanin Zaghari-Ratcliffe: Why has she been freed now?
- Marina Hyde, Guardian: Nazanin is grateful, but is she grateful enough? I don’t know but the trolls will tell us
Russia removed from Council of Europe
On 16 March 2022 the Committee of Ministers decided that the Russian Federation (having denounced the ECHR) would no longer be a member of the Council of Europe. By its Resolution CM/Res(2022)2 the Committee of Ministers,
“Reaffirming that the aggression of the Russian Federation against Ukraine constitutes a serious violation by the Russian Federation of its obligations under Article 3 of the Statute of the Council of Europe; …
Noting that by a communication dated 15 March 2022, the Government of the Russian Federation informed the Secretary General of its withdrawal from the Council of Europe in accordance with the Statute of the Council of Europe and of its intention to denounce the European Convention on Human Rights,
Decides, in the context of the procedure launched under Article 8 of the Statute of the Council of Europe, that the Russian Federation ceases to be a member of the Council of Europe as from 16 March 2022.”
The Statute of the Council of Europe provides by Art 3:
“Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.”
International Court issues provisional measures
Also on 16 March the International Court of Justice issued its order on provisional measures in the case brought by Ukraine against Russia under the Genocide Convention, saying “The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.”
According to the EJIL: talk! blog, this was “a huge win for Ukraine, with a huge majority, with only Judges Gevorgian and Xue dissenting” (respectively the Russian and Chinese judges on the court).
“The Court essentially accepted all of the arguments made by Ukraine for the purposes of the provisional measures stage of the proceeding, and rejected those in Russia’s submission to the Court that followed its non-appearance.”
Strip searching of children
It was reported last week that in 2020 two police officers in Hackney, having been called to a school, had strip-searched a 15-year-old black girl (identified only as ‘Q’) after teachers claimed to have smelt cannabis on her, without notifying her parents or allowing or requiring the presence of an appropriate adult. No cannabis was found. A Local Child Safeguarding Practice Review later reported that the search was “unjustified” and racism was “likely” to have been a factor. There were protests over the weekend in Hackney and other children have come forward to say that they, too, have been subjected to similar unlawful strip-searches.
The Metropolitan Police Service have, of course, apologised but Q is taking legal action against them and her school in Hackney, with the law firm Bhatt Murphy acting in respect of the civil proceedings and police complaint, and Just For Kids Law in relation to the education law aspects of the case.
- Open Democracy: Exclusive: More London children speak out about horrific police strip searches
- Just For Kids Law: An update on our work with Child Q
- BBC: Strip-searched Hackney schoolgirl to sue Met Police
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
BANKING — Duty of care — Execution of customer’s orders: Philipp v Barclays Bank UK plc, 14 Mar 2022  EWCA Civ 318;  WLR(D) 121, CA
CONFLICT OF LAWS — Tort — Applicable law: Husayn v Foreign and Commonwealth Office (Zubaydah v Foreign And Commonwealth Office), 16 Mar 2022  EWCA Civ 334;  WLR(D) 125, CA
CRIME — Insanity — M’Naghten rules: R v Keal, 18 Mar 2022  EWCA Crim 341;  WLR(D) 129, CA
DAMAGES — Personal injuries — Assessment: Martin v Salford Royal NHS Foundation, 11 Mar 2022  EWHC 532 (QB);  WLR(D) 124, QBD
EUROPEAN UNION — Freedom of movement — Right to reside: VI v Revenue and Customs Comrs, 10 Mar 2022 (Case C-247/20); EU:C:2022:177;  WLR(D) 120, ECJ
HOUSING — Secure tenancy — Claim for possession: Croydon London Borough Council v Kalonga, 09 Mar 2022  UKSC 7;  2 WLR 592, SC(E)
HUMAN RIGHTS — Freedom of expression and assembly — Interference with: Leigh v Comr of Police of the Metropolis, 11 Mar 2022  EWHC 527 (Admin);  WLR(D) 116; Press summary, DC
HUMAN RIGHTS — Human trafficking — Victim: R (MD) v Secretary of State for the Home Department, 16 Mar 2022  EWCA Civ 336;  WLR(D) 128, CA
PRACTICE — Claim form — Service out of jurisdiction: Aelf MSN 242 LLC v De Surinaamse Luchtvaart Maatschappij NV DBA Surinam Airways, 14 Mar 2022  EWHC 544 (Comm);  WLR(D) 122, QBD
REVENUE — Customs and Excise — Alcohol duty: Revenue and Customs Comrs v Perfect, 15 Mar 2022  EWCA Civ 330;  WLR(D) 119, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Inforrm’s Blog: Case Law, Strasbourg: IVT v Romania, Broadcast of interview with child without parental consent breached Article 8: IVT v Romania (Application no. 35582/15);  ECHR 189, ECtHR
UK Supreme Court Blog: ‘Elan-Cane: has the Supreme Court created a two-tier system between binary & non-binary genders?’: R (Elan-Cane) v Secretary of State for the Home Department  UKSC 56;  2 WLR 133; The Times, 12 January 2022, SC(E)
UK Human Rights Blog: Anonymity: politics, polarisation and the public interest: JR181(3), Re Application for Judicial Review  NIQB 16, QBD (NI)
NIPC Law: Optis v Apple — Trial F: Whether an Implementor is bound to take a Licence on FRAND Terms before knowing what they are: Optis Cellular Technology LLC v Apple Retail UK Ltd  EWHC 2564 (Pat), Ch D
Law & Religion UK: Same-sex marriage (or lack of it) in Bermuda: Ferguson: Attorney General for Bermuda v Ferguson (Bermuda)  UKPC 5, PC
Law & Religion UK: The Cayman Islands and same-sex marriage: Day & Anor: Day v Governor of the Cayman Islands (Cayman Islands)  UKPC 6, PC
UK Supreme Court Blog: Case Preview: Candey Ltd (Appellant) v Crumpler and another (as Joint Liquidators of Peak Hotels and Resorts Ltd (In Liquidation)) (Respondents): In re Peak Hotels and Resorts Ltd (appn all)  Bus LR 1107, SC(E)
Free Movement: Confirmed victims of human trafficking who claim asylum to get improved residence rights: R (KTT) v Secretary of State for the Home Department  EWCA Civ 307, CA
Other recent publications
In or Out: The Complicated History Between NATO and Ukraine
Lauren Mattiuzzo via the Hein Online blog explains one of the pretexts for the Russian invasion of Ukraine, namely its desire to join NATO, particularly in the period following Russia’s annexation of Crimea. Using HeinOnline resources, she explores the history between Ukraine and NATO dating back to 1992 shortly after Ukraine regained its independence.
SLAPP and English courts — some preliminary issues
In a post on his Law and Policy Blog, David Allen Green says SLAPP or “strategic litigation against public participation — is a new-ish name for an age-old problem”, namely the abuse of the legal process to harass journalists and commentators and discourage scrutiny of the rich and powerful, rather than obtain a legitimate remedy to protect their reputation. He discusses the history of the name, and what solutions might be needed in this jurisdiction (as opposed to America where the name originated). A separate post What is SLAPP? defines the term in more detail.
See also: Joshua Rozenberg, A Lawyer Writes: SLAPPS to be slapped down?
A war of words: EU sanctions and the blocking of online ‘disinformation’
Anya Proops QC on the Panopticon blog from 11 KBW chambers considers the pros and cons of restricting Russian broadcasters as part of the sanctions regime, under EU Regulation 2022/350, and the risk of unintended consequences for search engines and social media platforms. She says it “raises serious questions as to whether the EU, in pursuit of the laudable aim of defeating Putin’s war machine, may be unduly threatening free speech rights”.
Dates and Deadlines
Family Justice Council Conference
Doubletree by Hilton, Bristol — 6 April 2022
The theme of this year’s FJC conference is ‘Private Law – a proportionate and safe approach’. The event will be hosted by Sir Andrew McFarlane, President of the Family Division and Chair of the Family Justice Council. This year’s Bridget Lindley Memorial lecture will be given by Helen Adam, Mediator and chair of the Family Solutions Working Group. The title of the lecture is, ‘Is it Time for Climate Change in the Family Justice System?’.
Those who cannot attend in person can view the lecture online, registration via eventbrite. For delegates wishing to attend the main conference, please contact the FJC for information on how to register — email@example.com
Legal Aid Lawyer of the Year Awards
Nominations close 25 April 2022
Legal Aid Practitioners Group (LAPG) — a membership body representing legal aid practitioners in England and Wales and the clients they serve — is proud to organise these unique, non-profit-making awards. The LALYs, now in their 20th year, aim to recognise the vital and life-changing work of social justice lawyers and their colleagues. Nominations now open.
Four Jurisdictions Law Conference 2022
Friday 13 — Sunday 15 May | Middle Temple
The event is open to all members of the Bar and students, from any of the four jurisdictions. Plenary sessions cover a wide range of topics from the Rule of Law and the Ukraine Crisis and Duties of Candour to Humour and the Law and Diversity.
Multiple ticket options are available, including a reduced-price ticket for students and the junior Bar (under 7 years Call). View programme and buy tickets via Middle Temple website.
Tweet of the week…
…is one of many to mark the latest Silks Day
That’s it for this week. Thanks for reading, and thanks for all your tweets and links.
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.