UKHRB Round Up 23/03/2020 Lockdown at Last

23 March 2020 by Alethea Redfern

Faced with mounting criticism of his reluctance to impose restrictions on British society in the face of the Covid-19 crisis, this evening Boris Johnson ratcheted up Britain’s response by announcing a strict lockdown across the country. His address to the nation is available in full here.  

The prime minister began by characterising the pandemic as “the biggest threat this country has faced for decades,” and acknowledging that a failure to act would result in our healthcare system being fatally overwhelmed. He went on to outline the restrictions: a ban on gatherings of more than two people, the closure of all non-essential shops, and an instruction that people will only be allowed to leave their homes to buy essentials, for medical or care purposes, to take one form of exercise a day, or to travel to and from work where where absolutely necessary. 

The prime minister also stated that the police will be given powers to enforce these rules, including through fines and dispersing gatherings. Marin Hewitt, the chair of the National Police Chiefs Council, made it clear within minutes that the details of these enforcement powers were still being determined. In the guidance published shortly afterwards, the government committed to reviewing the measures in three weeks’ time. 

Although widely called-for and almost universally anticipated, the announcement represents a dramatic shift away from the British model of policing by consent, and is likely to be met with some discomfort and reluctance. Commentators have already expressed their concerns that this crisis could provide a foothold for more permanent curtailments of our fundamental rights; it remains too early to say whether those concerns will prove well-founded. 

In the News 

In the most recent Covid-19-related legal development, the Lord Chief Justice Lord Burnett of Maldon announced this morning that all jury trials in England and Wales will be put on hold as part of ongoing efforts to contain and delay the outbreak. 

In his statement, Lord Burnett said that arrangements have been put in place to use telephone, video and other technology to continue as many hearings as possible remotely. Any trials which cannot be conducted remotely, the most obvious being jury trials, will not be newly commenced. Any such trials already underway will be brought to a conclusion in accordance with new hygiene and social distancing policies. In some instances, trials will be adjourned for a short period to put these measures into place. 

Although generally welcomed as an advance on last week’s guidance, the announcement was nevertheless criticised in the Law Society Gazette, which reports that its imprecision caused “absolute chaos” in the magistrates’ courts. 

The announcement comes after the government’s decision for courts to continue as normal was met with widespread criticism among legal and healthcare professionals. Last Monday, justice minister Chris Philip’s tweet, in which he wrote that “for those not in isolation, justice will continue and jurors should attend court tomorrow as per their summons,” was pilloried by the Secret Barrister. They said Philips was “either ignorant or lying,” and described the phrase “justice will continue” as a “meaningless slogan, not a strategy.” They went on to note that “trials are [already] collapsing across the country” as a result of disruptions to the justice system. The Secret Barrister’s longer assessment, published earlier this evening in The Guardian, suggests that “the end result — clean and safe court buildings, trying cases promptly and without agonising delays – could be one positive to emerge from these troubling times.”

Along with all other spheres, our justice system faces an unprecedented balancing act. In a rapidly developing situation, complicated by sketchy information and considerable public uncertainty, interferences with liberties, such as the right to a fair and public trial held within a reasonable time, must be weighed against the public interest in protecting the lives of defendants, witnesses, judges, jurors, lawyers, court staff — and the public at large.

In the Courts 

• A Local Authority v AG [2020] EWFC 18: In the High Court, Mr Justice Mostyn held with regret that diplomatic immunity applied to a serving diplomat and his wife accused of serious physical abuse by their six children. He found himself unable to use section 3 of the Human Rights Act to “read in” an exception to the 1961 Vienna Convention on Diplomatic Relations in order to protect children or vulnerable adults at risk within the diplomat’s household. To do so would pass “beyond the boundary of interpretation.” While Mr Justice Mostyn made it clear that he considered the Vienna Convention incompatible with articles 1 and 3 of the ECHR, this relief was not sought by the Local Authority. The case follows two recent high-profile incidents involving diplomatic immunity: the Harry Dunn crash, analysed on the UKHRB here, and a case involving accusations of trafficking recently granted the first ever ‘leapfrog’ certificate directly from the Employment Appeal Tribunal to the Supreme Court. 
• MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 : The Supreme Court unanimously allowed this appeal, which concerned human trafficking and modern slavery. Before and after entering the UK aged 16, the Appellant had been subjected to physical abuse and forced labour. However, when the police and social services referred him to the National Referral Mechanism (“NRM”), the NRM decided, without meeting or interviewing the Appellant, that there was no reason to believe he was a victim of trafficking. The Appellant’s asylum application was rejected and the Secretary of State decided to remove him from the UK. The Court held that immigration appeals tribunals were not bound to accept the decision of the NRM; instead, while giving due weight to a competent decision-making authority’s prior determination, the tribunal needed to determine the relevant factual issues for itself on the evidence before it. The Court went on to clarify the circumstances in which an immigration decision to remove could give rise to a breach of Article 4 ECHR.

On the UKHRB 

• In the latest episode of Law Pod UK, biolaw expert Niall Coghlan expands on his excellent exploration of the interface between human rights and the quarantine and movement restrictions adopted in response to Covid-19, published here.
• Gareth Rhys offers a cogent overview of the Court of Appeal’s recent Canada Goose judgement, which outlines the guiding principles when seeking interim and final relief against ‘persons unknown’ in cases of public protests.
• Prompted by reports of developments at EU borders due to Covid-19, Joanna Curtis looks back to the decision of the ECtHR in Ilias v Hungary last November and considers the applicability of Article 5 ECHR in temporary border transit zones. 
• Thomas Hayes offers a preliminary overview of some of the impacts of Covid-19 on the UK legal system, including powers of arrest, employment law and the effect on our already over-stretched criminal justice system.