The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.
Trump’s police reform order
Reported by Laurence Tsai
On Tuesday 16 June 2020, US President Donald Trump signed an executive order titled, “Safe Policing for Safe Communities”, to reform police practices in the US, while rejecting calls to fund or dismantle the police. Both Democrats and Republicans have unveiled their respective bills to reform the police.
Broadly, Trump’s order seeks to encourage “police departments nationwide to adopt the highest professional standards to serve their communities”. The first major provision of the order would create federal incentives through the Justice Department for local police departments that seek “independent credentialing” to certify that law enforcement is meeting higher standards for the use of force and de-escalation training. The second major provision establishes a national database for tracking officers with “credible abuses” to prevent them from moving from one department to the next. In terms of transparency, the Department of Justice will “regularly and periodically make available to the public aggregated and anonymized data from the database.”
Trump specifically noted that the order would ban chokeholds – “except if an officer’s life is at risk”. Trump’s order would also incentivize local departments to bring on experts in mental health, addiction and homelessness as “co-responders” to “help officers manage these complex encounters.” The ban directly stems from the widespread re-emergence of BLM protests, which were ignited by the death of George Floyd, an African-American male, who was killed by a white police officer in Minneapolis, Minnesota.
Unsurprisingly, protesters have vehemently criticised the order for failing to address race-related inequalities and discrimination which plagues society, to which some “bad apples” in the police force have no doubt contributed. Notable figures, including Nancy Pelosi, the Democratic speaker of the House of Representatives, faulted the order for lacking “meaningful, mandatory accountability measures to end misconduct”. Chuck Schumer, the minority leader in the Senate, states that this order “will not deliver the comprehensive meaningful change and accountability in our nation’s police departments that Americans are demanding.” Trump himself appeared to acknowledge the restraints of unilateral action, announcing that he is committed to working with Congress on additional measures for police reform. Instead, his bill seemingly laughs in the face of decades-long outcries of injustice and police misconduct against ethnic minorities.
An additional point of contention is that Trump has not voiced any concern over the injustice produced by the doctrine of qualified immunity that many officers hide behind to escape liability. This almost-impenetrable cloak of protection has made it extremely difficult in practice to seek accountability of US police through legal channels. The fact that Trump has refused to modify or even acknowledge the dangers of keeping qualified immunity in the legal framework arguably undermines the message Trump wishes to convey through a piece of paper – that the bill is a progressive and fundamental mechanism to reform the police.
While Trump may hope that this political move would aid him in regaining the public’s confidence in him pending the November elections, it should be borne in mind that only a few weeks ago did he order an attack on peaceful protesters, whereby the militarized police force shot at unarmed citizens and journalists at Lafayette Square, Washington, D.C. with rubber bullets, leaving many severely injured and hospitalized. He also purported to invoke the Insurrection Act of 1807 – which would enable him to deploy active duty US soldiers – if any state did not take the necessary action against protesters to his satisfaction. One might wonder whether this new bill is merely hollow rhetoric with the goal of placing himself on a pedestal and appeasing protestors, or whether Trump genuinely desires to create change. As it stands, although Trump makes some good points, such as the need for police to prevent anarchy and chaos and that there are some bad apples, protesters remain unmoved by Trump’s speech and his bill.
Challenge to legality of UK lockdown to begin in High Court next week
Reported by Jasmine Cracknell
A UK businessman is seeking to challenge the Government’s decision to place the country in lockdown through a claim for judicial review. Simon Dolan is taking action against the Government who he says ‘acted illegally and disproportionately over the COVID 19 lockdown’ that began on 24th March.
He also believes the lockdown has contravened ‘basic human rights’, stating: ‘By forcing people to stay at home, and forcing businesses to close, they are…in contravention of basic Human Rights offered under English Law, that of the right to enjoy your property peacefully.’
‘What we wish to achieve in bringing this case, is simply the freedom of individuals – the freedom to visit friends, freedom to earn a living, to socialise…’
Mr Dolan, who owns several businesses across the UK, set up a Crowdjustice page for the campaign through which he has raised over £187,000. More than 6,000 people have also now contributed.
The first stage of the process will begin in the High Court on 2nd July, where Mr Dolan will apply for permission to bring a claim for judicial review. He is being represented by Michael Gardner of firm Wedlake Bell.
The claim is seeking to challenge the Government on the following grounds:
– Lawfulness: whether implementing regulations under the Public Health Act 1984 instead of the Civil Contingencies Act 2004 or the Coronavirus Act 2020 was unlawful.
– Legality: whether the continuation of lockdown is legal and, in particular, whether the tests the Government have put in place for lifting lockdown are too narrow, as they do not take into account the adverse economic and social effects of lockdown.
– The European Convention rights: whether the lockdown restrictions contravene the Convention rights, specifically the rights to liberty, family life, education and property.
Should the court decide there is an arguable case, the claim will proceed to a substantive hearing.
You can find more here.
Watchdog warns police take too much data from victims’ phones
Reported by Ellena Mottram
The Information Commissioner’s Office has warned Police in England and Wales are taking ‘excessive amounts of personal data’ from mobile phones of victims and witnesses during investigations. The has warned that the levels are in danger of discouraging individuals from reporting crime.
Due to the level of inconsistency between police forces in England and Wales the ICO has called for a new statutory code of practice. It is thought such a code would provide ‘greater clarity’ for police forces so a greater level of consistency can be reached.
Elizabeth Denham, head of the information commission stated the current practices ‘risk negatively affecting public confidence in our criminal justice system’. It was further reported that not only are excessive amounts of personal data being extracted in some areas, that data is store and made available to others.
The report was commissioned after concerns were raised by Claire Waxman, London’s victim’s commissioner regarding the current data practices being implemented.
Whilst groups who represent victims have called for change in the area, those who represent the accused have expressed concerns over restrictions to victim’s data being introduced. Barrister Claire Howell argued that in some of her cases where the complaint originally refused to hand over their phone and was then later compelled to do so, the data on the phone resulted in the case being dropped.
The report comes a year after New National Consent forms where introduced authorizing detectives to search phone data such as texts, images and call data. Since the introduction of the forms it has been reported that rape investigations are being dropped where victims refuse to hand over their phones for analysis.
The forms state that where access is denied ‘it may not be possible for the investigation or prosecution to continue’. In cases where the prosecution is continued the complaints refusal to provide the data will be made known to the defense and an order may be made requiring the individual to provide the disclosure. A report by HM Crown Prosecution Service Inspectorate last December criticized the number of demands made for complaints records, including mobile phones and medical records.
Research has revealed that as many as one in five complainants do not agree to having their phone searched and in every case where the individual refuses, the case is closed. This comes following figures last year which shows rape charges, prosecutions and convictions fell to their lowest levels in England and Wales for more than a decade.
Jurisprudential revision of Universal credit rules
Reported by Emma Ducroix
The Court of Appeal has backed four single mothers after a long legal fight by government, finding that the Universal Credit rules are irrational and unlawful.
The case revolved around the Department for Work and Pensions’ refusal to change universal credit assessment period regulations, which have the effect of penalizing claimants whose salary is paid towards the end of a month, resulting in fluctuating levels of income.
Danielle Johnson, a school catering assistant who brought the original case, had argued that the DWP’s refusal to allow her to adjust the date of her universal credit assessment period meant she was left about £500 worse off each year, and was therefore subject to cashflow problems and put at risk of eviction.
A court ruling last year found in favor of Johnson and three other single mothers, concluding that it was “odd in the extreme” that the DWP was unwilling to modify universal credit arrangements even when claimants were perversely affected. Currently around 85,000 claimants are estimated to be affected by the rules.
Between them, the four had been forced into rent arrears, and borrowed money and used food banks to make ends meet. One of the mothers was so exasperated by the system that she gave up work to look for another job that had no clash between her pay date and universal credit assessment period.
So four single mothers have secured a victory over the government after the appeal court ruled that rigid universal credit payment rules that leave tens of thousands of working benefit claimants out of pocket were irrational and unlawful.
The government department argued at the appeal that to have to change the way the benefit’s online computer calculation system worked in line with the original court ruling would undermine the principle of universal credit, cost at least £7.5m, and require thousands of calculations to be administered manually.
However, Lady Justice Rose said she agreed with the original ruling. The DWP had presented no reason why Johnson and the others should lose money simply because of the date in the month in which they had started their claim. The situation faced by Johnson and others was “perverse”, she said.
She said: “This case is, in my judgment, one of the rare instances where the secretary of state for work and pensions’ refusal to put in place a solution to this very specific problem is so irrational that I have concluded that the threshold is met because no reasonable [minister] would have struck the balance in that way.”
Welcoming the ruling, Johnson said: “I am relieved that the judgment means that the government must now act to ensure that I and others affected will no longer lose out on money and will have a steady cashflow.”
Johnson is paid on the last day of each month, and her universal credit assessment period runs from the last day of the month to the penultimate day of the next month. In some months, due to a weekend or bank holiday falling at the end of the month, her wages are paid into her bank account two days earlier than normal.
The universal credit system reads this as her having earned twice as much in one month and none in the next, meaning that her benefit payment amount fluctuates wildly, cancelling her work allowance in several months, and leaving her £500 a year worse off.
The Leigh Day solicitor Tessa Gregory, who acted for the four mothers, said: “The secretary of state committed to a ‘test and learn’ approach in rolling out universal credit, yet refused to listen to these four hard-working mums when they raised this issue over two years ago.”