Legal News Roundup: February 2021
Global news in February has been dominated by COVID-19 vaccine rollouts. However, other major issues of legal interest have topped the headlines charts. Here are some of the top legal headlines in February 2021.
Crown Prosecution Service Criticised for Rape Conviction Policy
Trigger Warning: Please note that the discussion below contains a discussion of rape which may be disturbing to some readers.
The Court of Appeal’s judicial review hearing against the Crown Prosecution Service (CPS) was brought by the End Violence Against Women Coalition (EVAW) and the Centre for Women’s Justice (CWJ). This coalition of women’s advocacy groups believes that the 2016 change in CPS policy has “effectively decriminalised rape”. The EVAW claims that the CPS did not consider the effects their policy change may have on the equal application of the Law on Women, a right that is protected under the 2010 Equality Act. The EVAW is therefore petitioning the Court to have the CPS look at all rape and sexual assault cases that have not been brought to prosecution since then, and to reconsider their decisions under a “merit-based approach”.
Since 2016, the number of rape prosecutions in England and Wales has fallen 60 percent, down to the lowest numbers ever recorded, despite the number of rapes being reported increasing markedly during the same time period. It is argued by the EVAW that this drop was caused by a covert change in CPS policy. This change affected which rape allegations were brought to Court, and was made with the goal of improving conviction rates.
Prior to 2016, the CPS employed a “merits-based approach”, evaluating each case as if the jury hearing it would have no prejudices. Prosecutors were trained in myths and stereotypes about rape victims in order to help tackle prosecutorial biases when selecting which cases to bring forward. During this time, prosecutors would not be scared to bring forward cases without corroborating evidence because prosecutions were still possible, if more challenging, based on the testimony of the victim alone.
In 2016, without publishing this information to the public, the CPS implemented a formal conviction target on rape cases, which they later admitted to and dropped. They retrospectively realised that this would result in fewer prosecutions and justice would not be reached for the victims. Furthermore, sexual offense prosecutors were discouraged from using the “merits-based approach” in training as it would result in “weak” cases being removed from the system and increase conviction rates.
The CPS denies these allegations, claiming their policy towards rape prosecution has never changed, despite EVAW’s evidence. The CPS claims that the judicial review brought forward by EVAW is unjustified and that the EVAW’s proposed reopening of all dropped cases would be impossible.
The judicial review hearing took place on 26 and 27 January 2021 before the Lord Chief Justice Lord Burnett, Lord Justice Holroyde, and Lady Justice Elisabeth Laing. Judgment will be passed on a later date which, as of yet, remains unspecified.
Stanstead 15: Terror Related Charges Quashed
The Court of Appeals passed down its judgment on the appeals of the “Stansted 15”, stating that there was “no case to answer” and roundly dismissing their charges under the 1990 Aviation and Maritime Security Act (AMSA).
The Stansted 15 is a group that was arrested in 2017 after cutting through a fence at Stansted airport and locking themselves to the wheels and wings of a jet. This jet had been chartered by the Home Office in order to deport individuals to Ghana, Nigeria, and Sierra Leone. The group wished to prevent this deportation. They were subsequently charged with the “intentional disruption of services at an aerodrome”, under AMSA, and were found guilty of their offenses in 2018. This conviction was labeled as a “devastating blow to our fundamental right to protest” by Caroline Lucas and saw large-scale activism from human rights groups such as Amnesty International, who advocated that the charges were unjust.
Concerns over the charges were due to the nature of AMSA, an Act passed to prosecute individuals who have committed terror-related and other serious offenses. The AMSA was the domestic law implementation of the Montreal Protocols, a counter-terrorism convention. The group was initially charged with aggravated trespass, a relatively minor offense. Three months later, however, this was changed to an AMSA charge by the Crown Prosecution Service, (CPS).
The Court subsequently determined that the actions of the group did not meet the standard for which the AMSA calls and that the actions of the group did not inherently cause danger or risk the safety of those at the airport. Further to this, the Court found that the equipment brought did not fall under the Act's definition of “devices or substances”, a provision envisioned for deadly weapons.
Overall, the Court found that the group should not have been charged by the CPS under the AMSA. They also found that the judge at the Crown Court in Chelmsford made a mistake by not realising that this Act was not relevant to the actions of the appellants. The ruling was met with support from human rights groups and vindication from the protestors who finally received acknowledgment that they were not terrorists. This case was a prime example of the label of "terrorist" being used by the state against those who go against their actions.
European Court of Human Rights Release Annual Report
The European Court of Human Rights (ECtHR) in Strasbourg hears cases from any of the 47 members of the Council of Europe. The ECtHR, unlike many other senior courts, such as the United States Supreme Court, can hear cases and pass judgments on them and can also issue advisory opinions on the law without a case before them.
The ECtHR releases an annual report which details the number of cases pending, the nature of the cases pending, statistics for each state, and which article the state is accused of violating. The ECtHR has almost 62,000 pending cases before its 47 judges, who pass judgments on 871 cases during the year 2020, highlighting the ECtHR's extremely high workload.
When breaking down pending cases, some interesting observations can be made about the human rights records of states on the international stage. Over 40,000 of the pending cases come from four of the 47 states under the remit of the court, with 13,800 cases coming from the Russian Federation, 11,150 from Turkey, 10,250 from Ukraine, and 7,700 from Romania. Each of these states, in recent years, has had major human rights issues appear in global news headlines, from Russia’s freedom of speech violations to Romanian discrimination of the Roma people.
When perceiving the other end of the scale in the number of pending cases, we find the United Kingdom with only 124 pending cases. Per 10,000 members of the population, the UK has the lowest rate of applications of any Council of Europe state. Since the publishing of the report, many within the UK have argued that the lack of cases in Strasbourg from the UK highlights the success of the controversial Human Rights Act of 1998 (HRA).
The HRA was designed to create a legal framework in the UK to challenge human rights violations domestically without needing to go through the bureaucracy of the Strasbourg court. The HRA is currently under legal review but advocates the hope that this report can help to bolster the Act's position. They believe that the report highlights the act's ability to hold the government accountable as human rights cases can be resolved domestically and not through the court’s backlogged bureaucracy.
Donald Trump’s "Revolving Door" Legal Team
Since the US Presidential Election in November 2020, Donald Trump’s legal team has presented the world with a cast of characters creating their own news headlines. From the infamous Four Seasons Total Landscaping press conference to Rudy Giuliani melting like the Wicked Witch of the West or, as this publication reported last month, the billion-dollar lawsuit against Sidney Powell, this is a saga that keeps on giving.
Trump and his legal team of Butch Bowers and Deborah Barbier parted ways, with Trump announcing two new lawyers to represent him. The initial reports surrounding the separation suggested that the former President was angry over the team's planned defense strategy, which would avoid any claims of election fraud. This was later proven to not be the case and in fact, the ever tight-fisted Trump had a fees dispute with his team; Bowers had suggested up to US$ 3 million (about GBP 2,154,399) in fees, something Trump was furious about as he believed, due to miscommunication, that he was only paying Bowers US$ 250,000 (about GBP 179,533).
This is not the first time that Trump has lost legal representation due to a fee dispute with a lawyer. Throughout his legal campaign to attempt to overturn the results of the election, Trump was represented by former New York City Mayor Rudy Giuliani (who can still be found advocating for the former President on TV). However, Giuliani is no longer representing Trump after Trump refused to pay his alleged US $20,000 (approximately GBP 14,363) per day fees.
Trump’s first new impeachment defense lawyer is David Schoen, a criminal defense lawyer who represents Trump’s close ally and pardon recipient Roger Stone, and was about to join the defence team of Jeffery Epstein days before his death. The second is Bruce Castro, a former Pennsylvania district attorney, and acting Attorney Heneral, who gained notoriety for choosing not to prosecute Bill Cosby in 2004.
This pair led Trump’s defense which won his impeachment trial with only 57 Senators voting to convict (and 67 needed for conviction). Trump’s legal team has been a revolving door over the past year with scandal after scandal degrading their reputation. With Trump apparently taking less of a public role outside of the Oval Office, maybe the door will come to a halt unless the ongoing Department of Justice investigations lead to charges.
UK Government to Impose Strict Sentences on Quarantine Violations
Downing Street and Holyrood have both announced and implemented mandatory “managed quarantine” restrictions for travelers arriving in the country from abroad with a substantial minimum GBP 1750 charge. Travelers who have visited any of the 33 “red-list” countries will have to quarantine for 10 days in airport hotels rather than their homes when flying into England or Wales. However, in Scotland, all travelers, no matter their country of origin, must quarantine in hotels going forward.
Upon the introduction of these new restrictions, there was a clear loophole where travelers not from a “red-list” country could arrive at an English airport and travel home to Scotland and quarantine at home, rather than in a hotel. Discussions to close this loophole are ongoing.
Alongside the new quarantine restriction, the UK government announced new legal consequences for violating them. Those who fail to quarantine face up to GBP 10,000 fines while those who do not take the mandatory pre-travel COVID-19 tests risk a GBP 1000 fine. There is also a fine of GBP 10,000 or up to 10 years in prison for failing to disclose visiting a “red-list” country.
These new sentences have faced strong criticism, especially from Lord Sumption, a former judge on the Supreme Court. Lord Sumption has called the decision by the Health Secretary to impose that these restrictions are “entirely disproportionate”. This argument has merits as these sentences are harsher than for those committing sexual offenses with minors which could land only a seven-year sentence.
No court is realistically going to impose this sentence on a defendant, Lord Sumption points out, and this is an exaggerated threat by the government to help enforce their new restrictions. The nature of the government's new punishments merely being a threat was highlighted on the first day of their implementation. On 16 February 2021, four individuals who forged their travel history upon arriving in the UK were handed a GBP 10,000 fine and no prison sentences. Many critics suggest that such a threat in the statute is nonetheless still a mistake, even if not enforced, as it sets a bad precedent.
Speaking of setting a bad precedent, many backbench Tory Members of Parliament have criticised the government's implementation of these sentences. The government included the new sentences under the Forgery and Counterfeiting Act 1981 which means that Parliament will not vote on their implementation. This angered many MPs as the government has purposefully evaded Parliament, breaking a legislative norm that many backbench MPs hold dearly. Nonetheless, there is not much Parliament and disgruntled MPs and Lords can do except maintain their confidence that no court will impose such a “ridiculous” penalty.