In the News:

Live-Facial Recognition cameras in London

On Wednesday, the Guardian reported that the Metropolitan Police are planning to use live facial recognition (LFR) technology on Oxford Street – the busiest shopping street in the UK.

Furthermore, such infrastructure would be permanently installed, with cameras fixed to street furniture – making it the first of its kind in the country. At a session of City Hall in July this year, Mayor Sadiq Khan announced that the Met was working to ‘use LFR in a sensible way’.

LFR has attracted heavy criticism from human rights campaign groups, in particular regarding evidence that the algorithm used risks discrimination against black people.

Following the announcement, Ruth Ehrlich, from the campaign group Liberty, said:

‘If live facial recognition is to be deployed in one of the country’s busiest shopping and tourist destinations, there must be full transparency about how it will be used, what safeguards are in place and how its impact on people’s rights will be monitored.’

‘Gender Identity’ in the Scottish Parliament

On Saturday, the Times reported that the Scottish Government’s draft Human Right Bill for Scotland, which is due to be put before MSPs shortly, contains a clause requiring public bodies to consider ‘gender identity’ when delivering services and designing policy.

According to the Times, campaigners have criticised the proposed clause for going beyond the meaning of ‘gender reassignment’ – the relevant protected characteristic in the Equality Act 2010. It has been pointed out that ‘gender identity’ is currently left undefined in the ministers’ proposals.

While modification of the Equality Act is outside of the competence of the Scottish Parliament under schedule 5 of the Scotland Act 1998, legislation making supplementary provisions to the Act falls under an exception to the reserved matter.

The campaign group ‘For Women Scotland’, who notably succeeded against Scottish Government Ministers in the Supreme Court last year, have indicated that the bill represents another attempt by the Scottish Government to circumvent the Supreme Court’s decision on the meaning of ‘sex’ in the Equality Act.  

According to a spokeswoman for the group, as reported by the Times:

‘Putting gender identity into Scots law is hugely problematic. The Equality Act recognises the right not to believe in the concept of gender identity yet the Scottish government plans to legislate for a compulsory belief in it and for public bodies to take it into account.’

On the legal implications of the bill potentially becoming an Act of the Scottish Parliament, the spokeswoman went on to add:

‘… it’s almost guaranteed to be another law that will end up in the courts.’

However, Associate Professor of Law at the University of Oxford, Michael Foran, who recently cancelled a lecture series due to repeated protests regarding alleged transphobia, commented:

‘If the proposal is merely to introduce a new duty to consider things such as sexual orientation and gender identity in the design and delivery of services, that alone is not in conflict with the Supreme Court decision, nor would it meet the tests to trigger the use of another s. 35 order, in my view.’

In the Courts:

On Wednesday, the High Court handed down judgment in Appiah & Anor v Leeds and York Partnership NHS Foundation Trust [2026] EWHC 2135 (KB), a case concerning the lawfulness of detention under the MHA 1983.

The complicated facts

The First Claimant, a Ghanaian national, had been sentenced to prison following a conviction in 2017 and was detained at HMP New Hall under the Immigration Act 1971, pending deportation. Following deterioration in her mental health, she was then detained under a series of provisions of the Mental Health Act 1983.

The first power of detention under the Act (ss. 48-49), which allows for the removal of prisoners to hospital, was exercised on 13th December 2018. The Defendant NHS trust – the authority responsible for the hospital to which the First Claimant was removed – was then notified on 12th April 2019, that the ss. 48-49 detention power would cease. Therefore, on the 26th April 2019, the First Claimant was subsequently detained under the s. 5 ‘holding power’. That power allows for an application for admission to be made at the behest of a single registered medical practitioner in respect of a patient who is already in hospital. On the same day, the Home Secretary revoked the deportation order, however the ‘holding power’ prevented the First Claimant’s release. Later that day, the First Claimant was detained under s. 3 of the Act – the standard long-term detention power.

The Second Defendant was the First Claimant’s husband and her ‘nearest relative’ under the MHA. However, he was displaced from this position by interim order made in the Leeds County Court on 26th April.

On 23rd August 2019 the First-tier Tribunal, decided that the First Claimant should be immediately released, finding that the her mental disorder could no longer be made out.

The claims before the High Court centred on a challenge to the lawfulness of the First Claimant’s detention and alleged mistreatment during the period of her detention. The pleaded claims were for unlawful imprisonment at common law, procedural breaches of the MHA, and breaches of Article 3, 5 and 8 ECHR in respect of the First Claimant. The Second Claimant brought a claim for breach of Article 8 ECHR, founded on interference with his ability to see his spouse.

The decision

Mr Tom Little KC, sitting as Deputy Judge of the High Court, dismissed all of both Claimants’ claims.

Citing Lord Dyson’s judgment in R (Lumba) v SSHD [2011] UKSC 12; [2012] 1 AC 245, his Lordship noted that in an action for false imprisonment, once the fact of imprisonment in established, the burden of proof on the balance of probabilities shifts to the Defendant to establish lawful authority. His Lordship found that the burden had been satisfied, noting ‘a significant number of Doctors and who are independent of each other considered the First Claimant to have a mental disorder at the material time.’ at [143].

In addition, his Lordship dismissed the First Claimant’s submission that an inference could be drawn from the Tribunal’s ruling on 23rd August 2019 that her detention was unlawful from the very beginning. He found that ‘in any event the Tribunal’s conclusion in August 2019 is consistent with a patient who had a mental disorder and was getting better.’ at [152].

Had the Tribunal considered it was determining a question of the lawfulness of the entire detention, his Lordship nevertheless held that he would not have been bound by this for two reasons. Firstly, such a determination would have been ultra vires of the Tribunal, under s. 72 MHA. Secondly, ‘that determination does not bind the High Court or determine the issues in a civil action for damages and in which I have received far more evidence than the Tribunal had.’ at [153].

As for alleged procedural breaches of the MHA, his Lordship dismissed the First Claimant’s submission that a ‘’settled’ or ‘definitive’ diagnosis or a specific and identified classification of a specific paragraph of DSM-V or ICD-10/11’ was required for detention under s. 3 of the Act.

His Lordship found that neither s. 3, nor Article 5 ECHR, which allow detention of those ‘with unsound mind’, required a settled diagnosis, citing Winterterp v The Netherlands (1979) 2 EHRR 387, where at [37], the Court held:

‘The Convention does not state what is to be understood by the words ‘persons of unsound mind’. The term is not one that can be given a definitive interpretation …’

As for the claims for breaches of Article 3, 5 and 8, the Court found these were not made out on the facts and that, given the determination that the First Claimant’s detention was lawful, the Articles 5 and 8 claims could not be sustained.

Finally, the Court dismissed the Second Claimant’s ‘parasitic’ Article 8 claim on the basis that, such a claim would have to be founded on a determination that the First Claimant’s detention had been unlawful. Were it to be otherwise, the result would be absurd: ‘If such a claim were possible then it would mean that a family member could claim when their loved one received a custodial sentence having committed a crime.’ at [188]. The interference with the Second Claimant’s Article 8 rights was consequently necessary and proportionate.

Elsewhere on the UKHRB: Lance Baynham considers When does an Employment Tribunal need to consider Human Rights arguments of its own motion? Cherrington v University of Derby [2026] EAT 107 and freedom of speech – see here

Law Pod UK 242: Rosalind English talks to COP specialist Amelia Walker about the NI AG’s reference on the subject of deprivation of liberty, and the Supreme Court’s consequent overturning of Cheshire West

Law Pod UK Episode 243: Lucy McCann discusses Pink Crime with Professor Valena Beety

The post The Weekly Round-up: Circumventing For Women Scotland? And unlawful imprisonment in the High Court appeared first on UK Human Rights Blog.