The year passed was, unsurprisingly, another year of tumult and surprise, something that by now registers as the norm rather than an aberration. Even so, 2022 must be a standout year – even by recent standards. From Russia’s invasion of Ukraine to the death of Queen Elizabeth II, the collapse of two consecutive Tory governments, dramatic election results around the world from Israel to Brazil, and in the run up to the festive season a football World Cup as mired in human rights controversy as in any sporting event can be, 2022 was not a quiet year.
Nor did the legal world disappoint. On the Parliamentary side of things, Justice Secretary Dominic Raab’s controversial Bill of Rights Bill continues to clunk through Parliament, and other bills with interesting human rights implications have had their moment in the sun as well. To take but one example, the Online Safety Bill, whose controversial but central parts dealing with ‘legal but harmful’ speech were removed recently, is yet to become law after extensive reform following criticisms based on freedom of expression.
But the focus of this post is not on Parliament, or politics in general, but on the highlights of 2022 in the Courts. So with no further ado and in no particular order, the cases which (in the completely impartial and objective joint opinion of the co-editors of this blog) have defined 2022 are:
A shocking case in which the Home Office did not cover itself in glory, HM concerned the seizure of phones from asylum seekers and others arriving on small boats and the subsequent mass copying of the data the phones held. Carried out under a secret blanket policy, the Home Office admitted the majority of the Claimant’s allegations of unlawfulness before the hearing, but some remained for the High Court to determine including the interpretation of the power of search and seizure in Paragraph 25B of Schedule 2 of the Immigration Act 1971.
The Court sided with the Claimants. But perhaps the most interesting aspect of the case was the second hearing dealing with the failure of governance that led to comprehensive breaches of the duty of candour. The case is likely to stand as an important authority relating to the duty of candour in future, not least beacuse it gave clear judicial authority for the first time for the proposition that the duty of candour applies before the issue of proceedings, starting “as soon as the Department is aware that someone is likely to test a decision or action affecting them” and continuing throughout proceedings.
Both stages of the case were covered on the blog by Marina Wheeler KC, whose articles can be found here and here.
All the way back in January, the Court of Appeal considered, yet again, the position of secondary victims in tort claims. The claimants in these joined cases had all suffered psychiatric injury as a result of witnessing loved ones die or sustain injury as a result of clinical negligence. In each case, the Court of Appeal was considering an appeal against successful or unsuccessful strike out.
After a painstaking survey of the authorities, the Court of Appeal held themselves bound by Taylor v A. Novo, meaning that the Claimants in these cases had to have witnessed the act alleged to constitute the negligence, rather than some later consequence of that act. In clinical negligence, where the negligence is often far removed in time and place from the manifestation of harm, and is as often an invisible omission as an observable act, this is a major bar to claimants.
However, the Court of Appeal recognised the unsatisfactory nature of the result, and it seems likely the Supreme Court will consider the issue afresh in 2023, with the potential for wide reaching implications for secondary victims in the field of clinical negligence. The case was discussed by Thomas Hayes in this post in January.
In 2022 the Blog covered a number of significant cases relating to the right to protest. In March, Shaheen Rahman KC wrote about the Divisional Court’s judgment in the case of Leigh. That case was a successful challenge to the lawfulness of decisions made by the Metropolitan Police Service (“MPS”) in relation to a planned vigil for Sarah Everard on Clapham Common at a time when London was in Tier 4 lockdown due to the Covid-19 pandemic. The Court held inter alia that the MPS had, when making a number of decisions about the proposed vigil, failed to carry out a case specific proportionality assessment. Such an assessment should have taken into account all of the relevant factors as set out by the Divisional Court in DPP v. Ziegler [2019] EWHC 71 (Admin), and subsequently approved on appeal to the Supreme Court. In failing to do so, the MPS had unlawfully interfered with the Claimant’s rights of freedom of expression and freedom of peaceful assembly under Articles 10 and 11 respectively of the European Convention on Human Rights (“ECHR”).
Consideration of the Ziegler case was central to another high-profile protest law Judgment in 2022. Attorney General’s Reference No.1 of 2022, was covered on the blog in October by Rosalind English here. That reference arose out of the acquittal of the ‘Colston Four’ on charges of criminal damage following their trial in Bristol Crown Court in January 2022. The Court of Appeal was asked to consider the defence argument that conviction for the damage done to the statute of Samuel Colston during a Black Lives Matter protest would have been a disproportionate interference with the Defendants’ rights to protest under Articles 10 (freedom of expression), 11 (freedom of assembly) and 9 (freedom of conscience) of the ECHR. The Court held that the ECHR does not provide protection to those who cause criminal damage during violent or non-peaceful protest. The position was further clarified in December of this year by the Supreme Court in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones)(Northern Ireland) Bill [2022] UKSC 32, which Anurag Deb has written about here.
Postitive obligations and negative effects on health: R (Richards) v The Environment Agency
A complex and interesting case, Richards concerned a dispute between a very ill young boy, a landfill site near his home, and the Environment Agency, whom it was alleged were in breach of articles 2 and 3 of the ECHR by failing to regulate the emission of harmful gasses fro the site. At first instance, Fordham J gave detailed consideration to the technical and scientific aspects of the case but also engaged in a ranging discussion of the extent and nature of positive obligations under the ECHR.
But the most interesting aspect of the judgment was the remedy: although at first instance no breach of the Human Rights Act 1998 was found to have been committed, the court went on to grant relief regardless, giving a declaration which explained how the Environment Agency had to act to avoid future breaches of the law. The Court of Appeal went on to find that this was inappropriate, and issued important guidance on declaratory relief in public law.
The case is an interesting one not only for the underlying subject matter, which takes on new significance in the context of suggestions that the Environment Agency has been put in an increasingly difficult position due to lack of funding. It’s approach to remedies, an understudied area of public law, shows another instance – familiar in recent years – of courts taking a marked interest in not overstepping the perceived proper boundaries of their authority with respect to the Executive branch.
The case was covered by Jasper Gold in this post in February.
The Government’s controversial Rwanda policy, announced in April, and legal attempts to prevent its implementation stimulated much commentary in the media and online in 2022, some if it informed. In essence, the policy is intended to operate so that individuals, whose asylum claims were deemed ‘inadmissible’ under the Immigration Rules could be removed to Rwanda, where their asylum claim would be assessed. If the claim were to be successful, the individual would be resettled in Rwanda.
In June, supporters of the policy were shocked and upset when the European Court of Human Rights exercised a power that has existed since the days of the European Commission on Human Rights, and issued a Rule 39 interim measure, effectively suspending the operation of the policy pending the final domestic decision in ongoing judicial review proceedings.
In December of this year, the Divisional Court upheld the lawfulness of the policy. In a fascinating and lengthy judgment, the court considered the policy and the assurances received from the Rwandan Government to facilitate its operation against the backdrop of international and domestic legal obligations. Ultimately, the Court concluded that the policy was, in principle, lawful. Commissioning Editor Emeritus, Jonathan Metzer, covered the judgment for the Blog in an extended look here.
Turning now to coronial law, in January the Divisional Court provided detailed guidance on the circumstances in which the enhanced investigative obligation under Article 2 ECHR arose. In Morahan the Deceased had previously been detained at a rehabilitation unit under Section 3 of the Mental Health Act 1983. The section had been rescinded and she remained on the unit as a voluntary patient. She left the Unit with her Doctor’s agreement on two occasions; on the first she didn’t return until the following evening, and on the second she did not return at all. She was subsequently found dead as a result of an accidental drug overdose.
The Court was asked to consider whether the duty to conduct a Middleton inquest arose in these circumstances. In finding that it did not, the Court set out a detailed and helpful exploration and summary of the key principles relating to Article 2 in the context of inquests. Rajkiran Barhey wrote about the case for the Blog here.
Standing, which attracted so much litigation in the 90s, has been a relatively quiet area of late, but GLP & Runnymede stands as a recent addition to standing jurisprudence. The Good Law Project, which has been litigating left, right and centre wherever it suspects government misconduct can be found and tackled through the courts, had drafted their articles of association widely, part of the purpose of which seems to have been to aid in conferring on the group standing in all manner of matters. This particular challenge was to the process by which the Government appointed Dido Harding to lead the vaccine drive, which was done without open competition.
Ultimately, the Court found that the GLP did not have standing to bring the claim, though the Runnymede Trusts, whose narrower purposes were more closely aligned with the matters the court was being asked to consider, could do so. The challenge still failed, though on its merits.
Standing in public law, which domestically is rather liberally draw, does, it seems, have limits. Not everyone can challenge everything. This must stand as a setback to the Good Law Project and to others generally in an age when strategic litigation has been gaining more attention and funding (in particular when combined with crowdfunding). This case is a reminder that the mere fact of a challengeable decision does not give the world at large the right to challenge it. The case was discussed on the blog in this post in February, written by Rosalind English.
Happy new year to all UKHRB readers – we wish you all the best for 2023!
-Jasper Gold and Darragh Coffey are the Commissioning Editors of the UK Human Rights Blog and Barristers at 1 Crown Office Row.
