Court: Queen's Bench Division (Divisional Court)
High Court hands down judgment in judicial review challenge to the early release regime under the Terrorist Offenders (Restriction of Early Release) Act 2020
R (Khan) v Secretary of State for the Justice Department  EWHC 2084 (Admin)
This was a judicial review application by which the Claimant sought to challenge the early release regime introduced by the Terrorist Offenders (Restriction of Early Release) Act 2020. The Claimant challenged the decision of the Secretary of State for Justice to enforce the legislation in his case, but in substance the challenge was to the legislation itself. The Claimant sought a declaration that s.247A of the Criminal Justice Act 2003, which was inserted by the 2020 Act, is incompatible with Articles 5, 7 and 14 of the Convention.
The Court dismissed the application. It held that there was no “other status” on which Article 14 could be based. With regards to Article 7, the Court found that the changes wrought by the 2020 Act were changes in the arrangements for early release; they were not changes to the sentence imposed by the sentencing judge. In the absence of a fundamental change of the sort described in Del Rio Prada, a redefinition of the penalty itself; an amendment by the legislature to the arrangements for early release raise no issue under Article 7. The challenge under Article 5 was also rejected.
Election Petition does not automatically abate if Parliament dissolved before proceedings are concluded
Greene v Forbes  EWHC 676 (QB)
The petition, alleging electoral fraud, was brought by the defeated Brexit Party candidate against the successful Labour Party candidate in the Peterborough By-Election on 6 June 2019. The Petitioner had sought but not yet obtained special leave to withdraw the petition (which would have rendered him liable for the respondent’s costs) when Parliament was dissolved on 5 November 2011. He then sought to argue that two nineteenth century cases caused the petition to “drop” so that the court had no jurisdiction even to order him to pay the respondent’s costs. The court did not accept that the two historic cases meant that a Parliamentary petition under the Representation of the People Act 1983 abated upon dissolution. The Petitioner’s application to withdraw (paying the respondent’s costs) was however allowed.
Jones & Ors v Commissioner of Police for the Metropolis  EWHC 2957 (Admin)
This case considered the proper interpretation of the words “public assembly” in section 14(1) of the Public Order Act 1986. This was an expedited, rolled-up hearing of an application for permission to apply for judicial review and, if permission is granted, a claim for judicial review of the decision of Superintendent Duncan McMillan to impose […]
R (Bridges) v South Wales Police  EWHC 2341 (Admin)
A Divisional Court has handed down judgment in a landmark case on the use of live Automated Facial Recognition (AFR) by the police. Live AFR captures the facial biometrics of people passing within range of video cameras and compares this data to the facial biometrics of people on police watchlists. South Wales Police uses AFR in real time in areas with very large numbers of people in an attempt to locate persons of interest. The claimant challenged SWP’s use of AFR on the basis that he had twice been present when this technology was in use, as well as its ongoing use in his police area. The Court held that live AFR engages the Article 8 rights of anyone whose face is scanned (or is at risk of being scanned) and constitutes the (sensitive) processing of their personal data. The judges nevertheless concluded that SWP’s use of AFR did not breach the claimant’s privacy or data protection rights. The judgment recognises that a public authority data controller’s compliance with the duty to undertake a data protection impact assessment is amenable to judicial review but rejected the challenge to SWP’s assessment. A challenge to SWP’s discharge of the Public Sector Equality Duty was also dismissed.
R (Officer W80) v Director General of the Independent Office for Police Conduct  EWHC 2215 (Admin)
The claimant, a Specialist Firearms Officer in the Metropolitan Police, challenged the decision of the Independent Office for Police Conduct to bring misconduct proceedings against him alleging a breach of the Standards of Professional Behaviour amounting to gross misconduct. The claimant had fired a fatal shot at Jermaine Barker during an intervention.
The principal ground of judicial review contended that the decision of the IOPC was unlawful because, in determining that the claimant had a case to answer, it applied the wrong test in law as to whether the claimant had acted in self-defence. The IOPC sought to apply a civil law test applicable to the torts of assault or battery, that the officer’s belief his life was in danger must not only be honest but also objectively reasonable for self-defence to be available and for the claimant to have a defence to the charge of misconduct. The claimant alleged that the correct test for self-defence in police misconduct proceedings is the criminal law test, namely, that the claimant had no case to answer in circumstances where he had an honest, albeit mistaken belief that his life was in danger. Ground 2 of the appeal contended that even if the IOPC is correct as to the legal test, the IOPC’s assessment of the facts as giving rise to a case to answer was unreasonable and irrational.
The Court quashed the IOPC’s decision on the basis that it had wrongly applied the civil law test in determining that there was no case to answer. The criminal law test should have been applied. Ground 2 was purely academic but, if it were not, the claimant had failed to surmount the very high threshold of irrationality.