Human Rights

Death of a political activist

The Russian opposition leader and activist Alexei Navalny has died in mysterious circumstances, prompting accusations of assassination. Navalny was being held in the remote Polar Wolf penal colony in Siberia where conditions are extremely harsh, but he had appeared in good health and spirits only the previous day during a court hearing. Russian authorities are reportedly refusing to release the body, even to Navalny’s own mother, while they purport to investigate what they allege is an incident of “sudden death syndrome”.

Lord Cameron, UK Foreign Secretary, told broadcasters at the Munich Security Conference that “we should hold [President] Putin accountable for this”. At the June 2021 summit between Joe Biden and Putin, the US president warned that Navalny’s death would trigger a response that would be “devastating for Russia”. But since then Russia has invaded Ukraine and already been subjected to a variety of sanctions, so there seems little more that can be done.

Putin and Russia are already the target of international court claims alleging war crimes and human rights violations. The UK Human Rights Blog points out that

“Multiple judgments have been previously issued by the European Court of Human Rights finding that Navalny’s rights to fair trial, liberty and security, and freedoms of expression and association had been violated by Russian authorities.”

Now Russia has withdrawn from the Council of Europe, it is even less likely to accept the court’s jurisdiction, let alone respect its rulings.

Open Justice

Legal blogging

An article by Lucy Reed KC in the current edition of Counsel magazine, Public debate about private matters, explains continuing efforts to open the family courts up to greater public scrutiny, including the current Reporting Pilot introduced last year in three courts and recently extended to a further 16. Reed is chair of the Transparency Project, which is not to be confused with the Transparency Implementation Group (TIG) set up by the President of the Family Division to implement the recommendations in his 2021 Review, Confidence and Confidentiality: Transparency in the Family Courts.

The Transparency Project was founded a decade ago, in 2014, to promote open justice and public legal education about family law. One of its main activities is to blog about court decisions which may have been misreported or misunderstood, or just to gave a more accurate picture of the day to day activities of the court. It suggested and persuaded the Family Procedure Rule Committee to adopt the idea of giving “legal bloggers” (duly authorised lawyers, not involved in the case, or working in academia or for an educational charity such as the Transparency Project) the same rights as accredited journalists to attend and report on private family hearings. That is now provided for in FPR 27.11(2)(ff).

Happy endings in East London Family Court

An example of legal blogging was undertaken by ICLR’s Paul Magrath, who is also a trustee of the Transparency Project, for whom he has written up two cases he attended at East London Family Court. Both cases reached, he says, a happy ending, with children being returned to a parent who had been adjudged capable of looking after them, subject to the safety net of a supervision order in favour of the local authority.

Podcasts

Lucy Reed KC appears as a guest in the latest edition of the Double Jeopardy podcast hosted by Ken Macdonald KC and Tim Owen KC of Matrix Chambers, discussing “Secrecy in the Family Courts

 

Another good discussion about reporting restrictions in the courts features in the latest Private Eye podcast, Page 94, Insane in the Membrane, though mainly focused on criminal cases and the anonymisation (or lack of it) of juvenile defendants in high profile cases.

Inadequate guidance

The Courts and Tribunals Observers’ Network has written an Open Letter to the LCJ: HMCTS guidance on public access to courts. It concerns the public guidance document which HM Courts and Tribunals Service published at the end of last year, which contains a number of serious inaccuracies and could be relied on by court staff to prevent members of the public exercising their right to attend, observe and take notes on cases in open court.

As the letter points out, all this could have been avoided if HMCTS had consulted more widely and researched more accurately the underlying rules.

Closed for parole

Although a great fuss was made about greater transparency of Parole Board hearings, following the infamous Worboys case (R (D) v Parole Board [2018] EWHC 694 (Admin); [2019] QB 285), with various consultations and amendments to the rules, the fact remains that most hearings are still conducted in secret, even when there has been an application by media, victim or the public for it to be open. This trend is typified by the latest publication of a decision on an application for a hearing to be in public, on 13 February: Public Hearing Decision in the case of Benjamin Fish.

The public will be excluded, according to the reasons given, but there is an offer to accommodate victims at a private hearing if they so wish. Fish was convicted of raping two girls under the age of 13 and other sexual offences. The statutory test for letting him out would be that his confinement is no longer necessary for the protection of the public. That will be decided at what will now be a secret hearing, though a summary of the decision may, if requested, be published. However, only three summaries have so far been published and they were all for cases heard in public, so while the possibility is there in the case of Fish, it seems unlikely to happen.

You can read more about the Parole Board’s somewhat halting steps towards transparency, and those of other courts, in chapter 7 of the new edition of Doughty, Reed & Magrath, Transparency in the Family Courts (Bloomsbury Professional, 2024). (It is mainly but not exclusively about family courts, with open justice and reporting restrictions in other courts being discussed for comparative purposes.)

Other recent items

Legislation: terrorism

The Law & Religion UK blog has a useful update about the current consultation on the Terrorism (Protection of Premises) Bill. Its purpose is to ensure “proportionate new security requirements” for certain public venues and locations, including places of entertainment and (hence that blog’s interest) places of worship. The Bill has been nicknamed “Martyn’s law” after one of the victims of the Manchester Arena attack in 2017. It will impose differing obligations for venues according to their size, within a range of tiers. There is a new consultation about this, as the post explains.

AI: a chatbot’s flight of fancy

Like many commercial organisations, Air Canada probably thought it was obligatory or at least a good look to have a chatbot on their website, to deal with all the queries they could thereby avoid paying human beings to deal with. Unfortunately, the bot gave the wrong answer and a customer relied upon it to their financial disadvantage. Result (from the Civil Resolution Tribunal in British Columbia): they were bound by their bot. That meant they had to give the customer the bereavement discount their bot had promised, even after he’d bought his ticket (contrary to the company’s policy of requiring the discount to be applied for before buying the ticket). The CRT has published its judgment: Moffatt v. Air Canada, 2024 BCCRT 149 (CanLII), which makes clear that the remedy took the form of damages for negligent misrepresentation.

The full story is told in Ars Technica: Air Canada must honor refund policy invented by airline’s chatbot. It drily notes that, since all this happened, “Air Canada appears to have quietly killed its costly chatbot support.”

Tribunals: The Access to Justice Advantage

Although it does not refer to the CRT as such, the benefit of tribunals designed to hear particular types of claim are extolled in a recent article on SLAW, Canada’s online legal magazine. Noel Semple explains that “there are many tribunals in Canada that deliver a level of access to justice which courts cannot match”. He says the best tribunals provide access (quick, cheap, and low-stress procedure) without sacrificing justice (substantively correct rulings, adherence to procedural justice, and a public and transparent process). While the cases tend to be factually and legally simpler than civil court matters are, making it easier for self-represented litigants not to need lawyers, tribunals are usually much quicker and cheaper than courts too.

International law: UN reference to ICJ on 6-Day War

Joshual Rozenberg (A Lawyer Writes) unpicks the case being argued this week at the International Court of Justice on a reference by the United Nations (of which the court is a creature) concerning the consequences of the Six-Day War in 1967 and the territorial gains then made by Israel. The Six Day War will occupy a six day hearing, which may be why Rozenberg heads his piece The six-day law. There are questions about the independence of the court and the openness of the process, including access to documents filed by various parties.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

CHILDREN — Care proceedings — Threshold criteria: In re O (Description of Sexual Abuse), 15 Feb 2024 [2024] EWCA Civ 126; [2024] WLR(D) 73, CA

CHILDREN — Proceedings concerning — Unrepresented parties: In re Z (Prohibition on Cross-examination: No QLR), 09 Feb 2024 [2024] EWFC 22; [2024] WLR(D) 64, Fam Ct

CRIME — Sentence — Young offenders: R (Quaye) v Secretary of State for Justice, 09 Feb 2024 [2024] EWHC 211 (Admin); [2024] WLR(D) 63, DC

CRIME — Sentence — Serious crime prevention order: Juul v Chief Constable of Dyfed Powys Police, 07 Feb 2024 [2024] EWHC 193 (Admin); [2024] WLR(D) 51, KBD

IMMIGRATION — Deportation — Conducive to public good: Yalcin v Secretary of State for the Home Department, 06 Feb 2024 [2024] EWCA Civ 74; [2024] WLR(D) 49, CA

POLICE — Powers — Persons in custody: Chief Constable of Essex Police v Carter, 02 Feb 2024 [2024] EWHC 126 (KB); [2024] WLR(D) 62, KBD

REVENUE — Stamp duty land tax — Sub-sale relief: Brown v Revenue and Customs Comrs, 08 Feb 2024 [2024] EWCA Civ 92; [2024] WLR(D) 72, CA

TRIBUNAL — Upper Tribunal — Jurisdiction: RI v Disclosure and Barring Service, 09 Feb 2024 [2024] EWCA Civ 95; [2024] WLR(D) 57, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

UK Human Rights Blog: Strasbourg Court dismisses challenges to bans on stunning for Halal and Kosher meat: Belgian Muslims v Belgium (Application no 16760/22), ECtHR

A Lawyer Writes: Rape investigation ineffective: X v Greece (Application no. 38588/21), ECtHR

UK Supreme Court Blog: Case Comment — Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47; [2024] 2 WLR 45; [2023] WLR(D) 513; The Times, 5 February 2024, SC(E)

Mental Capacity Law and Policy: Triangulation and flexibility: taking capacity seriously in changing circumstances: In re DY (Capacity) [2024] EWCOP 4, Ct of Protection

UK Human Rights Blog: Freedom of expression and offensive political Emails: an important assertion of a fundamental right: R v Casserly [2024] EWCA Crim 25; [2024] WLR(D) 33, CA

Free Movement: An application for permission to appeal to the Supreme Court is not a barrier to deportation: Geddes v Secretary of State for the Home Department [2024] EWHC 66 (Admin); [2024] WLR(D) 27, KBD

Local Government Lawyer: Claimant wins appeal over lawfulness of housing needs assessment while care proceedings ongoing: R (SK) v Windsor and Maidenhead Royal Borough Council [2024] EWHC 158 (Admin), KBD

Global Freedom of Expression: Glukhin v. Russia: expands expression: Glukhin v Russia (Application no. 11519/20), ECtHR

Mental Capacity Law and Policy: Contact, contraception, conception and conceptual clarity: Poole J dissects a difficult question: In re EE (Capacity: Contraception and Conception) [2024] EWCOP 5, Ct of Protection

Ars Technica: Backdoors that let cops decrypt messages violate human rights, EU court says: Podchasov v Russia (Application no. 33696/19), ECtHR

Free Movement: Court of Appeal rejects Home Office attempt to exclude person on “public policy grounds”: Secretary of State for the Home Department v Okafor [2024] EWCA Civ 23, CA

Nearly Legal: A lack of candour over a lack of discretion: R (Montano) v London Borough of Lambeth [2024] EWHC 249 (Admin), KBD

Law Society Gazette: Supreme Court rules that insurer should pay victim’s car hire losses: Armstead v Royal Sun Alliance Insurance Co Ltd [2024] UKSC 6, SC(E)

Free Movement: Varying an application for leave will undermine a delay challenge: R (Zhou) v Secretary of State for the Home Department [2024] EWCA Civ 81, CA

And finally…

Tweet of the week

is a sign from a feline, in Croydon

That’s it for this week. Thanks for buying my book (new edition just out), and thanks for all your tweets, toots, posts and threads.

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.

Featured image: Lubov Sobol /Aleksey Navalny /Julia Navalnaya on march in memory of Boris Nemtsov, Moscow 2020. (Shutterstock)