Ian Wise QC acts for Harry Miller, as judge rules police’s “Orwellian” action disproportionately interfered with Miller’s right of freedom of expression

The Queen on the application of Harry Miller (Claimant) v (1) The College of Policing and (2) The Chief Constable of Humberside (Defendants)

Ian Wise QC, instructed by Paul Conrathe of Sinclairs Law, acted for the claimant, ex-police officer Harry Miller, in his challenge to the College of Policing guidance and the action of Humberside Police in following that guidance which required the police to record a ‘non-crime hate incident’ against him, following a complaint by an anonymous member of the public who said that they were offended by allegedly “transphobic” tweets.

This high-profile case raises important and novel issues concerning freedom of speech and social media and has been described by leading legal commentator Adam Wagner as the “most important judgment on free speech and social media for years”.

In his judgment handed down today, Mr Justice Julian Knowles held that although the College of Policing’s general guidance on the recording of “non-crime hate incidents” did not in and of itself involve a disproportionate interference with the Claimant’s Article 10 rights, Humberside Police had disproportionately interfered with the Claimant’s rights under Article 10 ECHR by recording the Claimant’s tweets as a “non-crime hate incidents” under that guidance and subsequently warning the Claimant that he may face criminal prosecution if he continued to tweet on the same subject. The High Court placed heavy reliance on the fact that the Claimant’s tweets formed part of a legitimate public debate about proposed reforms to the Gender Recognition Act 2004, and therefore any interference with the Claimant’s right to express an opinion on such issues required a very compelling justification, which was absent in this case. The judgment is notable for its detailed and penetrating analysis of the Strasbourg and domestic authorities on freedom of expression, and will no doubt form an important precedent in future cases involving such issues.

The judgment emphasises the vital importance of free speech in a democracy and provides a reminder that free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, and that the freedom only to speak inoffensively is not worth having. In response to the Defendants’ submissions that any interference with the Claimant’s rights was trivial and justifiable, the judgment is clear:
The effect of the police turning up at [the Claimant’s] place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.

You can read the full judgment here.

The case and judgment received significant media interest. See examples of today’s coverage:
BBCNews; The Times; The Guardian; The Evening Standard; The Telegraph.

Ian Wise QC acted for Mr Miller throughout the proceedings. Michael Armitage assisted Ian with in preparing the detailed legal submissions for the hearing.

Khatija Hafesji successfully brings a notable retrospective section 20 Children Act judicial review claim

R (AB) v Ealing LBC [2019] EWHC 3351 (Admin) is only the second case to successfully challenge a refusal to grant retrospective section 20 status after the judgment of the Court of Appeal in GE (Eritrea) v the Secretary of State for the Home Department [2014] EWCA Civ 1490, and is the very first to do so more than 3 months after the initial decision not to accommodate a child under section 20 was taken. The Court (Matthew Gullick, sitting as a Deputy High Court Judge) found that Ealing’s assessment of AB’s needs was unlawful, and its subsequent decision not to treat her as if she were a former relevant child was also unlawful.

AB had a long history of contact with social services, due to her status as a young carer for her mother and siblings and having suffered and witnessed domestic violence at home. AB ran away from home at the age of 17, however Ealing social services refused to accommodate her and insisted that she return home. AB instead stayed in a refuge for women fleeing domestic violence. Upon turning 18, AB claimed that she ought to have been accommodated when she initially approached Ealing for assistance and – had she been – she would now be entitled to the rights and entitlements conferred on young people leaving care. She asked Ealing to exercise its discretion to remedy this injustice. Ealing claimed that its initial assessment that she did not require accommodation was sound, and that it would not exercise its discretion. The Court quashed that decision and the matter was remitted to Ealing. On 30th January 2020, Ealing confirmed that it would treat AB as a former relevant child.

The Court’s consideration of the timing issue is of significance. The Court accepted AB’s argument that the decision under challenge was the decision not to exercise the discretion rather than the underlying assessment and therefore the claim was in time. The Court thereby rejected the Ealing’s argument that such an approach undermines the public interest in the finality of decision-making and permits challenges many months or years after the relevant assessment.

Following written submissions, AB was also awarded 100% of her costs in a fully-reasoned judgment which highlights the importance of well-timed settlement offers in judicial review claims.

Khatija Hafesji acted as sole counsel for the successful Claimant. She was instructed by Lois Clifton, Fiona Couzens, and Dan Rosenberg of Simpson Millar solicitors.

A copy of the judgment can be read here.

Gerry Facenna and Nikolaus Grubeck successfully defend BSI in judicial review claim

In a detailed judgment in R (Ventcroft) v British Standards Institution [2020] EWHC 68 (Admin), the High Court has refused permission in an application for judicial review seeking to challenge a decision by the British Standards Institution (“BSI”) to approve a revised standard for fire-retardant cables. In his decision, Julian Knowles J noted that BSI was “a specialist body with a high degree of technical expertise”. He held that it was not arguable that BSI had acted unreasonably or that its decision was otherwise unlawful in a public law sense and gave permission for the judgment to be cited.

Gerry Facenna QC and Nikolaus Grubeck acted for BSI

Court of Appeal rules prisoner’s claim hearing via video-link does not breach fair trial rights – Eric Metcalfe acts for Respondents

Michael v Governor of HMP Whitemoor & Anor

The Appellant, a Category A prisoner who is serving a life sentence for murder, brought a data protection claim against his former solicitors in the Oxford County Court. He asked the Governor of his prison, HMP Whitemoor, to allow him to attend the hearing of his claim in person. Among other things, he claimed that he suffered from various mental health difficulties that would prevent him from participating effectively in the hearing via video link.

The prison authorities refused his request, noting his security risk and the lack of the secure dock, and that he had used the video-link to participate in hearings on a number of previous occasions without apparent difficulty. The Appellant applied to judicially review the refusal, arguing that it violated his right to a fair trial under article 6 ECHR , that Prison Service Order 4625 unlawfully fettered the prison’s discretion by adopting a blanket ban against the production of Category A prisoners in court and, as a late amendment, that the refusal also involved an unlawful delegation of the Secretary of State’s power under Schedule 1 of the Crime (Sentences) Act 1997 (as held by the Supreme Court in R (Bourgass) v Secretary of State for Justice [2015] UKSC 54).

In June 2018, William Davis J refused the Appellant permission to rely on the Bourgass ground and dismissed his substantive application for judicial review. The Appellant appealed this decision. In its judgment this week, the Court of Appeal (the Lord Chief Justice, Holroyde LJ and Davies J) unanimously dismissed the Appellant’s article 6 challenge, his challenge to PSO 4625 and the Bourgass ground but allowed the appeal on the “limited basis” that the prison authorities had misdirected themselves as to the existence of a secure dock at Oxford County Court. Given the passage of time, the Court concluded that it was appropriate to quash the decision so that it could be taken in light of up-to-date circumstances.

Eric Metcalfe acted for the Respondents, the Governor of HMP Whitemoor and the Director of High Security Prisons.

Kassie Smith QC advising Hong Kong Competition Commission on first case brought under its leniency regime

Hong Kong’s Competition Commission (HKCC) has recently initiated proceedings against an IT company, Quantr, in the Hong Kong courts after Quantr rejected the lesser penalty of agreeing to an infringement notice. HKCC’s case is that Quantr and its director, Cheung Man Kit, engaged in cartel conduct in relation to a bidding exercise organized by Hong Kong theme park Ocean Park in 2017 for the procurement of IT services based on Nintex technology. HKCC found that Nintex also participated in the cartel conduct, but the company accepted an infringement notice and a revised competition compliance program. The case was brought to HKCC’s attention by Quantr’s co-bidder who filed a leniency application, which the commission accepted. This is the first case in Hong Kong that has resulted from a successful leniency application, and it is also the first time the commission has made use of its power to issue an infringement notice.

Kassie Smith QC is advising the Hong Kong Competition Commission.

The HKCC press release about the case.

High Court refers case on treatment in bankruptcy of foreign personal pension schemes to the Court of Justice of the EU.

In a judgment handed down this morning, Nugee J has decided to refer to the CJEU a case concerning the treatment of assets held in a foreign pension scheme by a person who is declared bankrupt in England and Wales. Under English insolvency law, assets held by a bankrupt in a scheme registered in the UK and subject to UK regulation are not counted as part of the bankrupt’s estate and are not available for distribution to creditors. But similar protection does not extend to a bankrupt’s assets held in a personal pension scheme registered in and regulated by an EU Member State and not registered in the UK.

The present case concerned an Irish national who built up assets in an Irish personal pension scheme before moving to England to run a consultancy business. He was then declared bankrupt. The trustees in bankruptcy claimed that his assets in the Irish scheme formed part of the bankrupt estate. The Court noted that although the Irish scheme could in theory have registered in the UK, that was not a decision for an individual beneficiary and would have imposed potentially onerous obligations on the Irish scheme in return for no clear benefit to the scheme. The Court accepted that it was likely that Article 49 of the Treaty on the Functioning of the EU (freedom of establishment) and Article 24(1) of the Citizens’ Rights Directive (equal treatment) required the UK to extend to his assets in the Irish scheme the same provisions excluding those assets from his estate that would have applied were his assets in an equivalent UK scheme. However, the Court had sufficient doubts about the application of Article 49 and the Directive for it to be appropriate to refer the question of whether they applied to the CJEU. The Court also held that if the CJEU agrees that EU law does require the extension of protection to the Irish scheme, UK legislation can be read, using the principle of conforming interpretation, so as to comply with what EU law requires.

It should be noted that although the reference is likely to be made after the UK leaves the EU on 31 January, and to be decided after the likely end of the transition period on 31 December 2020, the Withdrawal Agreement provides that references to the CJEU may continue to be made during the transitional period, that the CJEU will decide such references even after transition, and that the outcome will bind the UK courts. Those provisions will all be implemented into UK law by the Withdrawal Agreement Bill currently awaiting Royal Assent.

George Peretz QC represented the Irish national in the case.

Court of Appeal upholds CMA decision on internet sales bans – Ben Lask acts for CMA

The Court of Appeal has upheld the CMA’s decision that a ban on selling golf clubs online is a serious breach of competition law.

In a judgment handed down on 21 January the Court dismissed an appeal by the golf club manufacturer Ping concerning its longstanding policy banning its authorised retailers from selling its golf clubs over the internet. In a 2017 decision the CMA found that the ban was a restriction of competition by ‘object’ – i.e. a measure that was so inherently likely to harm competition that it was unnecessary to prove any actual effects – and therefore an infringement of both EU and domestic competition law. That decision was upheld by the Competition Appeal Tribunal in 2018 and the Tribunal’s judgment has now been upheld by the Court of Appeal.

The Court’s judgment provides important guidance on the meaning of ‘object’ infringements and suggests that when applying competition law the domestic courts will not look kindly on attempts to restrict the ability of retailers to sell over the internet. Such an approach is consistent with the approach taken so far by the European Commission and the EU Court of Justice.

Ben Lask acted for the CMA in both the Tribunal and the Court of Appeal. A copy of the judgment can be read here.

Anneli Howard represents UK Government in EFTA proceedings successfully defending legality of the UK’s ban on secondary ticketing for Olympics 2012

In a rare reference to the EFTA Court from the Norwegian courts regarding the sale of tickets for the Olympics 2012 Games, the EFTA Court handed down judgment on 18 December 2019 accepting the UK’s arguments that Mr Gyrre’s sale of the tickets was unlawful under EU consumer protection law since he omitted material information about restrictions on the use of the tickets which were void when sold by unauthorised resellers. The EFTA Court ruled that his commercial practices in selling the tickets online were automatically unfair under Annex I of the UCPD – although the consumer obtained their ticket, it was useless and could not be used to gain access to the venue – indeed, consumers could be prosecuted for trespass.

The case also raised wider issues about the compatibility of the UK’s ban on unauthorised resellers with EU/EEA law. Mr Gyrre, a Norwegian, was prosecuted for selling tickets online all over Europe in breach of the Act and claimed the breach was contrary to the freedom of services under the EEA (equivalent to Article 56 TFEU). The UK argued that the UK’s LOCOG Act, which prohibits the resale of tickets by unauthorised sellers, was a non-discriminatory Keck selling rule or was objectively justified to protect consumers and ensure health and safety and national security at stadia. This has ongoing relevance for similar requirements for tickets sales at concerts and large international sporting events.

Mr Gyrre also claimed that his right to challenge the compatibility of the ban took precedence over consumers’ rights and meant that they had suffered no prejudice. The EFTA court held that, although Mr Gyrre might claim the prohibition was in breach of EU/EEA law, that did not affect the position of consumers. The key material time for determining unfairness of the practice and its impact on the consumer’s economic behaviour was the time of the relevant transaction. The EFTA Court upheld the UK’s argument that a subsequent determination could not affect the knowledge of the average consumer at the time of the transaction or alter their position after the event. A consumer could not be expected to know the intricacies of EU law to challenge the invalidity of his/her ticket if/when they were refused entry to the Games.

Anneli Howard represented the UK Government in its written submissions and at the oral hearing in February 2019 – with Zoe Lavery, member of the Government Legal Department, acting as Agent.

Read full judgment here.

FCO defeats civil claims arising out of the conflict in Kosovo in 1999

In Tomanovic & Ors v Foreign and Commonwealth Office [2019] EWHC 3350 (QB), Brendan McGurk successfully defended the Foreign and Commonwealth Office from claims brought by family members of Serbians killed or disappeared following NATO’s airstrikes in June 1999 and the consequent withdrawal of Slobodan Milosovic’s forces from Kosovo. It was common ground that the deaths and disappearances were orchestrated by the Kosovo Liberation Army. A previous claim brought against the Ministry of Defence for the UK’s failure to carry out investigations compliantly with Articles 2 and 3 ECHR was rejected by Irwin J (as he then was) in Kontic & Ors v Ministry of Defence [2016] EWHC 2034 (QB). The claim against the FCO was based on the novel proposition that because the FCO had seconded an employee to the EU’s Rule of Law Mission to Kosovo – a body set up to investigate and prosecute crimes in the aftermath of Milosovic’s withdrawal – his alleged failure to investigate the deaths and disappearances could be attributed to the UK Government. That proposition was rejected in the judgment of Johnson J who further concluded that the Claimants were outside the jurisdiction of the UK for the purposes of Article 1 ECHR and that the claim was an abuse of process in circumstances where these claims could have been pursued as part of the Kontic litigation. Brendan McGurk was led in both Kontic and Tomanovic by Sir James Eadie QC.

The decision of Johnson J is here.

Brendan McGurk wins domestic and EU phytosanitary cases

Member States are required to carry out Official Controls at, inter alia, slaughterhouses to prevent animal disease from entering the human food chain. National Competent authorities (in the UK, the Food Standards Agency) are permitted and in some cases required to charge for the provision of Official Controls. By regulation 4 of the Meat (Official Controls Charges) (England) Regulations 2009, the FSA has the power to withdraw controls from premises in relation to which previous debts for the provision of Official Controls have been accrued by previous operators. The provision is designed to avoid phoenix companies from continuing to receive Official Controls when a related business has failed to pay for the same. In R (OaO Agro Foods (Ashford) Limited) v Food Standards Agency [2019] EWHC 2718 (Admin) Mr Michael Fordham QC (sitting as a Deputy High Court Judge) rejected a challenge to the effect that regulation 4 violated EU charging provisions and/or could not be interpreted as the FSA had sought to do so. The judgment is here.

Relatedly, on 19 December 2019, the CJEU handed down its decision in case C-477/18 Exportslachterij J. Gosschalk and Others v Netherlands, in which the Court confirmed that National Competent authorities were permitted by EU to recover indirect as well as the direct costs of providing Official Controls to Food Business Operators. The ruling precludes domestic restitutionary claims to the effect that the FSA has recovered excessive costs in charging for the provision of Official Controls. The judgment is not yet available in English (the French version is here) but accedes to submissions made on behalf of the UK Government who intervened in support of the Dutch Government.

Brendan McGurk successfully acted for both the FSA in the Agro Judicial Review and the UK Government in the Exportslachterij J. Gosschalk reference.