The Weekly Round-Up: Police Taser use, GDPR and the basic right to protest

31 August 2021 by Calla Randall

In the news:

The independent police watchdog has published a report this week claiming Black people and those with mental health problems are more likely to be subject to prolonged Taser use. The report from the Independent Office for Police Conduct reviewed some of the most serious cases of Taser use in the last five years, including 16 deaths. The report suggested that 60% of Taser incidents against Black people lasted for longer than 5 seconds, more than double the 29% of white people subjected to a similar length. The report made 17 recommendations, including a new system of police training on the use of the weapons. Following the report, families of victims killed by the use of a Taser have argued that the police should be banned from using them where it is clear the subject is suffering from a mental health crisis, and suggested that many of the cases of Taser deaths (some of which were sent to the Crown Prosecution Service but never reached court) should be reinvestigated. However, the police rebutted the report’s findings, asserting that they were ‘vague’ and misrepresentative, given that the report looked at only 0.1% of Taser use between 2015-2020, and focused on serious cases which had already been investigated by the Commission. This issue is becoming ever more relevant as a greater number of police officers are issued with Tasers each year.

In other news:

• This week the High Court granted the Good Law Project (GLP) permission to bring a judicial review case against three government departments: the Secretary of State for Housing, Communities and Local Government, the Chancellor of the Exchequer, and the Secretary of State for Transport, concerning the Government’s new ‘Levelling Up Fund’. The fund allocates local authorities to three different bands, and the JR seeks to challenge the criteria used for allocation. The GLP is claiming that the fund is not aimed at the regeneration of communities, but is instead ‘… a way to funnel money into constituencies of political benefit to the Conservative Party’. In particular, it is claimed that: (i) the allocation criteria breaches s.149 of the Equality Act, which establishes the duty of a public authority to have due regard to the need to eliminate discrimination and harassment; (ii) the common law duty of transparency and good administration was breached in failing to make data used in allocation decisions public; and (iii) the allocation decisions and methodology were irrational. Mr Justice Bourne said that although it was highly debatable that the duty of transparency under claim (ii) could found a JR claim alone, as a whole, the grounds were sufficiently arguable to warrant a substantive hearing.
• The Culture Secretary announced this week that the Government is planning to scrap GDPR protections on the use of individuals’ data, and use Brexit as a chance to overhaul the UK’s privacy rules. The change was promoted as an opportunity to streamline privacy rules, bringing an end to annoying cookie banners and box ticking. However, the plan has been criticised by several privacy rights organisations, including Open Rights Group, who suggested that individuals would likely lose control of their data privacy. Furthermore, Brussels has issued a warning that it will bring an end to data sharing agreements (which include information on criminals and suspected terrorists) if the change poses a risk to the data privacy of EU citizens.
• The climate activism group, Extinction Rebellion, has issued a letter to Scotland Yard Commissioner Cressida Dick demanding that they be informed about how the police will approach their upcoming demonstrations in London. The police have previously responded to demonstrators by arresting them en masse, but a series of recent acquittals of Extinction Rebellion members in court suggest that the police and prosecutors were failing to give adequate weight to the right to protest, which, in one acquittal, Judge Mark Dennis QC labelled a ‘basic human rights point that has been there for a very long time’. Future en masse arrests therefore could lead to a host of ‘unlawful arrest’ claims. However, if the highly controversial Police, Crime, Sentencing and Courts Bill is successfully passed in the Commons, which seeks to render demonstrations deemed a ‘nuisance’ or ‘noisy’ as criminal, Extinction Rebellion may have less recourse in law to oppose mass arrests.

In the courts:

Steve Hill Ltd v Witham [2021] EWCA Civ 1312: The Court of Appeal refused the Appellant’s claim on grounds 1-3, while allowing ground 5 of the appeal. The Appeal concerned a dependancy claim brought by the Respondent under the Fatal Accidents Act (FAA) when her husband died of mesothelioma caused by exposure to asbestos, which occurred because of the Claimant’s negligence. The dependancy claim was based on the Respondent’s inability to return to work because she needed to look after her two foster children, childcare previously provided by her late husband. In grounds 1-3, the Appellant claimed that the Respondent’s loss did not constitute recoverable loss under the FAA because (i) the foster children were suffering the loss, not the Respondent, and (ii) the loss arose from fostering, which is a business relationship. Nicola David LJ rejected these submissions, finding that first, the fact that the foster children (who could not claim any recoverable loss) suffered from the same loss as the Respondent, did not render the additional loss sustained by the Respondent unrecoverable. Second, whether fostering was a business relationship was a question of fact in each case. In the previous court, the judge resolutely found that the decision to foster was ‘at its core’ concerned with having a family, not a business decision. Finally, ground 5 of the appeal was founded on remarkable new evidence that the foster children had been removed from the care of the Respondent. Caring for the foster children was instrumental to the calculation of the correct amount of dependancy loss to be awarded, and, consequently, the court permitted the new evidence to be admitted, and found that the issue would have to be remitted to the High Court to enable the loss to be recalculated.

On the UKHRB:

• Jodie Blackstock discusses the changes in safeguards for those involved in criminal proceedings in the EU.