Published on September 5, 2017 by Laura

Welcome to another Lawyer Portal weekly news summary. This week’s post will cover the legal news stories from 28th August 2017 to 3rd September 2017. This week the National Crime Agency admitted to flouting the law by helping Thai police put two men on death row; laughing gas was held to remain legal after two cases were thrown out based on its illegality under the Psychoactive Substances Act 2016 and a prestigious London sixth form faces a legal challenge after reports that pupils were being excluded from progressing from AS to A-Level due to low grades.

The National Crime Agency has been forced to admit it acted unlawfully when it gave intelligence to Thai police regarding the murders of two British backpackers. The NCA supplied phone record evidence to investigators in Thailand following the September 2014 murders of Hannah Witheridge, 23, and David Miller, 24, on the island of Koh Tao. Zaw Lin and Wai Phyo were convicted of the murders in 2015 and now face execution by lethal injection.

The case is controversial because the government opposes the death penalty overseas. Therefore, there are tight restrictions on what help British law enforcement can provide to police abroad in cases where suspects may be put to death. The high court order said that the NCA breached government rules designed to prevent UK law enforcement from inadvertently aiding human rights abuses abroad, known as overseas security and justice assistance guidance. Following the murders, the NCA passed phone location data to Thai police, enabling prosecutors to say their suspects were in the same area as the alleged victim. The court order also said that the NCA ignored rules on seeking authority from its own directors or Home Office ministers. The NCA have since admitted that the data sharing was unlawful and that they should have consulted departmental ministers on the matter.

Anti-death penalty group Reprieve have repeatedly commented that due to the unlawful actions of the NCA, the trial of the two Burmese nationals was unfair. Maya Foa, director of Reprieve, said: “It is bad enough that the NCA secretly handed over evidence to help secure death sentences in a country known for unfair trials and torture. But they now admit they did this illegally, without any proper thought that their actions could contribute to a grave miscarriage of justice.”

Foreign and Commonwealth Office guidance, issued in 2016, made clear that it was the UK’s longstanding policy to oppose the death penalty “in all circumstances as a matter of principle.”

Laughing gas will technically remain legal after a major court decision rules that nitrous oxide isn’t covered by the Psychoactive Substances Act 2016. Despite this, many police forces across the UK have said they will continue pursuing suspects until new guidelines are given.

The landmark ruling came after two men were allegedly found with the substance as they were entering Glastonbury last year. They were both arrested and charged with one count each of possession of a psychoactive substance with intent to supply. However, the defence barrister for the case argued that under the definition given by the Act, nitrous oxide cannot be counted as a psychoactive substance.

As deconstructed by the defence, the act states that for something to count as a psychoactive substance it needs to fit within two categories. First, it needs to produce a ‘psychoactive’ effect. Second, it needs to fail to fall into an exempted category such as alcohol, food and importantly medicine. Thus, whilst if inhaled, nitrous oxide can produce feelings of euphoria, hallucination and dizziness, it is also commonly administered as an anaesthetic for some medical treatment, as well as in catering for the preservation of some foodstuffs.  Moreover, a prosecutor told the court that the Crown’s own expert witness who is an Oxford pharmacology professor, had expressed a firm view that the substance, as the legislation is currently worded, is exempt.

Niamh Eastwood who is the Executive Director of drug advocacy group Release said that the case shows how ‘flawed’ this relatively new law is. However, the 2016 Act has been beneficial in causing the sale of psychoactive substances to be suspended in over 300 retailers in the UK. Police have arrested suppliers and the National Crime Agency have worked to remove the sale of substances online from UK websites. Moreover, police forces have said that arrests of those suspected of possession and supply of the drug will continue until further guidelines are released following the decision by the court.

A Home Office spokesperson said that whilst the drug is covered by the Act, whether it can be exempt due to medicinal purposes is ultimately a matter for the court to determine based on the circumstances of each individual case. Rudi Fortson QC, a Professor at Queen Mary University of London who specializes in drug law, said it would be ‘absurd’ to label all nitrous oxide a medicinal product. However, any change to the wording of the legislation must come from some adjustment to the law made by Parliament.

St Olave’s, in London’s Borough of Bromley, faces a legal challenge from families over sixth formers being illegally kicked out halfway through their A-Level courses.  The news came after former governor Tom Wright-Jones complained about a lack of transparency in governance of the school and called on the headteacher and current governing body to ‘right the wrong’ being done to pupils. The lawyers acting in this case are considering launching proceedings against a number of other London Schools after being contacted by parents about similar illegal conduct.

Parents launched legal action against St Olave’s after an estimated 16 sixth-form students were told their places at school were being withdrawn because they failed to get top grades in AS and equivalent internal exams before their final A-Level year. Other students were told they would be allowed to continue on a discretionary basis and were asked to sign a contract stating that if they did not get minimum B grade in their mock exams the school reserved the right not to enter them for their A-Level exams.

The Department of Education has not commented directly on the case however in a statement released on Wednesday it said its pupil registration regulations made clear that schools are not allowed to remove pupils from sixth-form because of academic attainment once they are enrolled. It said, “Excluding pupils temporarily or permanently for non-disciplinary reasons is unlawful.”

Any change resulting from the challenge could have far-reaching consequence because many schools put conditions on pupils carrying onto final year. Headteachers say this is about professional judgement as to whether a pupil will be able to achieve qualification however others claim that removing weaker students is a way for schools to protect their standing in league tables.

Words: Alicia Gibson


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