All at sea over policy

The failure of the government’s post-Brexit border control and its policy in respect of immigration and asylum became horribly apparent in a week in which a boat full of refugees capsized in the English channel with the loss of most of those attempting to make the dangerous crossing in it, yet barely two days later high-level talks between Britain and France broke down amid a diplomatic row over a tweet by Boris Johnson PM.

The problem, as campaigners have pointed out, is that there are effectively no safe and legal routes for refugees to come to the UK to claim asylum. Brexit has made the problem worse. The UK dropped out of the Dublin III Regulation system, which permitted removals to other countries within the EU, and has failed so far to replace it with bilateral agreements. Instead, the government’s primary focus has been on patrolling the border and taking other measures in an attempt to prevent sea crossings, while blaming the problem on the people-smugglers who assist the refugees (for profit), rather than the conflicts and oppression in places such as Afghanistan and Syria, that have made these people refugees in the first place. The surge of refugees from Afghanistan was predictable from the UK’s chaotic troop withdrawal this summer, yet the Afghan Citizens Resettlement Scheme which the Home Secretary Priti Patel announced as “launched” in August 2021 has still not yet opened three months later.

“The depressing reality”, says immigration barrister Colin Yeo in a post on Free Movement entitled The tragedy in the Channel, “is that these deaths — and thousands more — are the price our society is willing for other people to pay in order to maintain our system of closed borders”.

The lack of alternatives means that, despite such tragedies, more will attempt the crossing. Border Force, whose staff union has joined a legal challenge to the Home Secretary’s plan to push back small boats in the Channel, continue to rescue and process new arrivals, but even then their ordeal is not over as they must negotiate the asylum casework system. A recent inspection report from the Independent Chief Inspector of Borders and Immigration examined the efficiency and effectiveness of the Home Office’s asylum casework system and found numerous problems, including rushed and poor quality decision making in assessing asylum claims, worsening delays as resources failed to meet demand, a “dislocated” workflow process relying on “off-the-shelf Excel spreadsheets” susceptible to “human error and potential loss of data”, and poor staff training and retention. “This report shows that the Home Office is pretty much as dysfunctional as an organisation can be”, says barrister Alasdair Mackenzie in another post on Free Movement, Nine problems with the asylum system that Priti Patel can’t blame on anyone else

Perhaps it’s not surprising, then, that according to CJ McKinney, also on Free Movement, “Only five people who arrived in the UK by small boat have been sent back to a European country so far this year, according to the Home Office”. The perception that those making the dangerous crossing are primarily economic migrants is not borne out by the figures for successful asylum applications and appeals — Colin Yeo points out that 64% of initial asylum decisions by the Home Office are grants of asylum, and a further 48% of asylum appeals were successful — and seems largely based on hostile media reporting and astroturf lobbying by anti-migrant groups, amplified by somewhat hysterical overpromising on the part of the Home Secretary for unachievable political ends.

See also:

Plus: In an effort to contribute to understanding after the Channel boat tragedy last week, and with International Migrants Day in December, Bristol University Press are offering the ebook of Unravelling Europe’s ‘Migration Crisis’: Journeys Over Land and Sea free to download.


Harper’s Law

The government has introduced something called Harper’s Law, named after PC Andrew Harper who was killed in the line of duty in 2019, to impose a mandatory life sentence for anyone convicted of killing an emergency worker in the course of committing a crime. It follows a campaign by Andrew’s family, including his widow Lissie, and the Police Federation. There was a petition on which got 770,609 supporters. According to the government’s announcement,

“The move extends mandatory life sentences to anyone who commits the manslaughter of an emergency worker on duty — including police, prison officers, firefighters and paramedics — while carrying out another crime unless there are truly exceptional circumstances. Courts must already impose life sentences for murder, with a whole-life order being the starting point if the victim is a police officer.”

The development was criticised by, among others, the Secret Barrister, who pointed out that “Justice is not measured solely in terms of how it satisfies the victim” and that the “blurring of the distinction between murder and manslaughter is really troubling”. See Harper’s Law: A grim tale of political exploitation and incoherent lawmaking.

Yet another dog gone law!

Following a report in September by the somewhat grandiose-sounding Pet Theft Task Force, the government has resolved to accede to its recommendation to introduce a new offence of “pet abduction”. According to the report

“Britain is a nation of pet lovers, and many pets are considered members of the family, with their welfare and safety a key concern for owners. When a pet is stolen, this can cause significant emotional distress to the owner and animal, and the government is committed to tackling this crime.”

The taskforce was led by the 3 Secretaries of State from the Department for Environment, Food and Rural Affairs (Defra), the Home Office and the Ministry of Justice, and comprised from government officials from each department and representatives from operational partner organisations, who provided additional knowledge, experience and guidance on the practical aspects of reducing pet theft.

Reflecting the proposed legal recognition of animal sentience, assuming enactment of the Animal Welfare (Sentience) Bill as intended, the Taskforce considered ways to better reflect the public’s view that pets are sentient beings and their theft was not merely the theft of a piece of property, as they are currently treated under the Theft Act 1968. In other words, Something Must Be Done.

Now at last the government has announced that a new offence of “dog abduction” will be added to the Animal Welfare (Kept Animals) Bill (see cl 43). It’s not clear why the offence is confined to dogs, but according to the announcement on 18 November, “A provision will also be made in the Bill to extend the offence to other pets in the future, should evidence support this.”

So, for all their crafty sentience, cats are not on a level playing field with dogs, nor are snakes, monkeys or (I have been reading “Ring of Bright Water”) otters. This seems a very divisive approach, destined to pit animal lover against animal lover. It really is quite beastly.

And as Matthew Scott on his Barristerblog points out (What is the point of the new so-called “dog theft” law?), the offence carries a “maximum sentence of 5 years imprisonment, 2 years below the existing maximum for theft of anything else”. So for all their sentience and the love that is lavished on the family dog, its theft under the new law carries a lower penalty than a mere chattel under the much scorned Theft Act 1968.

The crucial difference, it turns out, is that the offence of “dog taking” is more akin to that of taking a vehicle without the owner’s consent (known as a TWOC), in that it does not require to be proved an intention permanently to deprive the owner. But while it may be easier to prosecute, it will still take up police time to investigate, and that is time, says Scott, that cannot be devoted to a burglary, a rape or a murder.

Coronavirus Regulations

With the news of a more infectious new variant of Covid first discovered in South Africa, known as the Omicron variant, governments around the world have been considering and in some cases implementing more stringent restrictions on travel and personal contact. In the UK, the Prime Minister announced new measures including face coverings in shops and on public transport, PCR tests on or before day 2 for all international arrivals and self-isolation for contacts of suspected Omicron cases, including for those who are fully-vaccinated. South Africa and other southern African countries were put on additional “red list” travel restrictions: see The Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (№20) Regulations 2021.

As usual the restrictions seem haphazard and a bit pick-n-mix, eg introducing mask wearing in some contexts, such as shops and public transport (though many of us never stopped wearing them), but not others, such as entertainment venues. And also as usual, there will be confusion between what the regulations provide and what the guidance suggests you should do to comply with them.

BBC: Omicron: How are rules for face coverings and masks being tightened?

Meanwhile, the Bingham Centre for the Rule of Law has produced a report, 18 Months of COVID-19 Legislation in England: A Rule of Law Analysis (October 2021) analysing the extent to which the government’s pandemic response has changed over the last year so as to address rule of law concerns that were brought to the government’s attention in the early stages of the pandemic. Katie Lines, author of the report, argues on The Constitution Unit Blog that “the government has failed to enable proper parliamentary scrutiny, made it hard for public and politicians alike to know what the law actually is, and that its response to rule of law concerns has been lacking”.

Intellectual Property

Star Wars: the IP strikes back

The design of the stormtrooper helmet used in the Star Wars films has yet again given rise to an intellectual property dispute. In a previous case, Lucasfilm Ltd v Ainsworth [2011] UKSC 39; [2012] 1 AC 208 the UK Supreme Court affirmed a decision that the helmet created for the films did not attract copyright in English law as a “sculpture” for the purposes of section 4 of the Copyright, Designs and Patents Act 1988, but held that the claimant’s United States copyright claims (based on a US court’s default judgment) against the defendants (who had originally made the helmet to the claimant’s order and were now selling replicas) were justiciable in the English court.

In this new star war, images of the stormtrooper helmet in a special edition decorated by artists and photographers such as Sir Anish Kapoor, David Bailey and Helen Downie (who goes by the name Unskilled Worker), were allegedly turned into non-fungible tokens (NFTs) without the artists’ consent, and have since been marketed for millions. This case also involves the original prop-maker Andrew Ainsworth (first defendant in the Lucasfilms case), who apparently worked with art curator Ben Moore in setting up the original project inviting artists to decorate the helmets; but it is alleged that Moore failed to warn them that his images of their work might subsequently be monetised as NFTs. The Financial Times reports that “About 12 artists are considering legal action against the project, according to legal representatives”: see Art by Anish Kapoor and David Bailey for sale as NFTs without their consent.

See also: The Times, Star war brews over digital sale of helmets


Engagement with users

The Court and Tribunals Service (HMCTS) has issued the report of its latest Communications and Engagement Survey 2021. The survey analysed how well HMCTS communicates with court users of different types through the various channels of communications it uses to reach them. It found that professional users were generally better satisfied than they had been in the previous (2019) survey, but even so, the percentage who trusted HMCTS communications was still only 66%, which doesn’t seem especially high. Worryingly, only 43% thought communications from HMCTS were “open and transparent”, but that was more than double the number (22%) who had thought so in 2019.

“Respondents also offered their views on HMCTS communications at regional and/or local level. They were sympathetic towards local court and tribunal staff and greatly value their contribution to the justice system but felt consistency and timeliness of local communications could sometimes be improved.”

Overall, therefore, the picture is decidedly mixed, which is perhaps not surprising given that the courts service is in the midst of a major restructuring project and the survey was conducted during a period of exceptional stress owing to the lockdown restrictions necessitated by the coronavirus pandemic.

Family law

Domestic abuse: monitoring and guidance

The Domestic Abuse Commissioner has put forward proposals for a mechanism to monitor and report on domestic abuse in private law children proceedings. Improving the family court response to domestic abuse follows a recommendation in the Harm Report for the establishment of a monitoring mechanism within the office of the Domestic Abuse Commissioner (DAC), in partnership with the Victims’ Commissioner (VC). This mechanism will help address the serious failings identified in the Harm Panel report, making the courts and outcomes safer for children, through:

  • improving data and understanding of how private law children cases involving domestic abuse are treated, and
  • providing a means for the voices of survivors and children to be heard

The mechanism will improve both transparency and accountability within the family courts — it will aim to get to the heart of what is going on in the current system when it comes to domestic abuse. And importantly, it will centre the voices of survivors and children.

See also: Transparency Project, ‘Far too often survivors and their children have been let down and retraumatised through the process and it is one of my utmost priorities to change this’

Meanwhile the Local Government and Social Care Ombudsman has issued guidance to help domestic abuse survivors. As councils take on more responsibility under the new Domestic Abuse Act, the Local Government and Social Care Ombudsman is urging them to reflect on their own practices and procedures using the lessons contained within today’s report and identify whether they can improve the way they work. Issues highlighted in the report include councils questioning victims’ lived experiences and downplaying the impact of the trauma they have endured, failing to work with other local services to keep victims safe, and leaving people at risk for longer than necessary.

Recent case summaries from ICLR

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

CHILDREN — Residence order — Application to vary: In re A (A Child) (supervised contact) (section 91(14) Children Act 1989 orders), 23 Nov 2021 [2021] EWCA Civ 1749, CA

COSTS — Discretion of court — Offer of settlement: London Trocadero (2015) LLP v Picturehouse Cinemas Ltd, 19 Nov 2021 [2021] EWHC 3103 (Ch); [2021] WLR(D) 589, Ch D

CRIME — Sentence — Imprisonment: Marosan v Court of Cluj-Napoca, Romania, 19 Nov 2021 [2021] EWHC 3098 (Admin); [2021] WLR(D) 594, QBD

EUROPEAN UNION — Common foreign and security policy — Restrictive measures: Council of the European Union v Hamas23 Nov 2021 (Case C-833/19P); (Case C-833/19 P); EU:C:2021:950; [2021] WLR(D) 592, ECJ

EUROPEAN UNION — Social security — Child benefit: Carrington v Revenue and Customs Comrs (WC v Revenue and Customs Comrs), 26 Nov 2021 [2021] EWCA Civ 1724; [2021] WLR(D) 600, CA

HUMAN RIGHTS — United Nations Security Council sanctions — Effective remedy: R (Youssef) v Secretary of State for Foreign, Commonwealth and Development Affairs, 26 Nov 2021 [2021] EWHC 3188 (Admin); [2021] WLR(D) 603, QBD

IMMIGRATION — Leave to enter — Multiple entry visit visa: Hussain v Secretary of State for the Home Department, 26 Nov 2021 [2021] EWCA Civ 2781; [2021] WLR(D) 601, CA

INSURANCE — Liability insurance — Employers’ liability: Komives v Hick Lane Bedding Ltd, 24 Nov 2021 [2021] EWHC 3139 (QB); [2021] WLR(D) 591, QBD

JUDGMENT — Action to set aside — Allegation that judgment fraudulently obtained: Park v CNH Industrial Capital Europe Ltd (t/a CNH Capital), 24 Nov 2021 [2021] EWCA Civ 1766; [2021] WLR(D) 593, CA

POLICE — Pension — Injury pension: R (Chief Constable of South Yorkshire Police) v Crown Court at Sheffield, 19 Nov 2021 [2021] EWCA Civ 1699; [2021] WLR(D) 582, CA

SOCIAL SECURITY — Welfare benefits — Coronavirus support scheme: R (The Motherhood Plan) v HM Treasury, 24 Nov 2021 [2021] EWCA Civ 1703; [2021] WLR(D) 590, CA

Recent case comments on ICLR

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

Open Justice Court of Protection Project: Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB: A Local Authority v JB [2021] UKSC 52, SC(E)

NIPC Law: Patents — Nicoventures Trading Ltd v Philip Morris Products SA [2021] EWHC 1977 (Pat), Ch D

Free Movement: Challenge to automatic British citizenship for Northern Irish people thrown out: Re Ní Chuinneagain [2021] NIQB 79, QBD (NI)

UK Human Rights Blog: Mandatory vaccination for care home workers not unlawful nor in breach of ECHR: R (Peters) v Secretary of State for Health and Social Care [2021] EWHC 3182 (Admin), QBD

UK Supreme Court Blog: Case Comment: Anwar v Advocate General for Scotland (representing the Secretary of State for Business, Energy and Industrial Strategy)[2021] UKSC 44; [2021] WLR(D) 536, SC(Sc)

Panopticon blog: Personal Data and Identifiability NHS Business Services Authority v Information Commissioner and Spivack [2021] UKUT 192 (AAC), UT (AAC)

Other recent publications

The UKSC Blog interviews Lord Leggatt

An interview conducted by Adam Kosmalski and James Warshaw, two editors of the UK Supreme Court Blog, provides a unique insight into the views of Lord Leggatt on subjects such as the impact of Covid-19 on the judicial system and the role of the UK Supreme Court, as well as offering a glimpse into the inner workings of daily life in the court. Leggatt read philosophy before studying law, and says its has influenced how he approaches legal thinking. His top tip for barristers? Keep your voice up! Some judges are hard of hearing.

Fighting the good fight

Lucy Reed on her Pink Tape blog discusses the professional duty of a barrister to fight their client’s corner, when necessary, while recognising the need to avoid unnecessary conflict in resolving family law disputes. The post is a response to the suggestion that “the biggest problem for children in the context of divorce/separation is parental conflict. It should never be about a ‘fight’.”

‘Raab doesn’t care about talking to barristers because he knows his constituents don’t care’

Nicholas Reed Langen on The Justice Gap explains why the Lord Chancellor, Dominic Raab, doesn’t care that he didn’t give an address to barristers, preferring to take a selfie with rollerskating Christmas puddings last weekend, because he knows that his constituents don’t care. Both he and his ministers think it more important to stoke populist fears about immigration cases and please the crowd with pointless legislation than to engage with the real problems facing the justice system.

Licence to chill

Graham Smith, via his Cyberleagle blog, discusses the new harm-based communication offence proposed by the Law Commission following its project on reforming communications offences. There is no doubt, he says, that section 127 of the Communications Act 2003 is in need of reform. The question is whether the proposed replacement is an improvement. For reasons which he then explains, he thinks it has “significant problems”.

Dates and Deadlines

Pupillage discussion

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.