Court challenge to lockdown rules following break-up
SOLICITORS acting for a man who says his relationship with his partner broke down because of lockdown restrictions have written to First Minister Mark Drakeford to tell him he will be the respondent in a High Court legal challenge.
Michael O’Brien, who is bringing the action, is well-known as one of the Cardiff Newsagent Three, who spent 11 years in prison for a murder they did not commit before their convictions were quashed.
Now Mr O’Brien, who currently lives near Aberdare, has instructed solicitors Swain and Co to use human rights legislation to challenge the lockdown regulations.
In a pre-action letter sent to the First Minister this week, Mr Drakeford has been asked to disclose the basis on which lockdown rules were introduced that prevent Mr O’Brien from meeting his partner indoors. He claims the Welsh Government’s regulations breach his rights under Article 8 of the European Convention on Human Rights, which states that everyone has “the right to respect for his private and family life”.
It goes on to state: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
In their letter to Mr Drakeford, Swain and Co have given Mr Drakeford 14 days to “disclose all reasoning it relies upon to suggest the regulations do not breach Article 8; disclose all evidence it relies upon to evidence that the new regulations are necessary and proportionate; disclose any proportionality assessment undertaken; [and] disclose any assessment/consideration of any lesser alternatives that were considered to achieve the aims”.
It goes on to state: “The claimant is a resident of Rhondda Cynon Taf. [His] relationship with his partner as a result of the ban has ended.
“The claimant suffers [post-traumatic stress disorder (PTSD)] directly as a result of being incarcerated for a crime he did not commit.
“The local lockdown restrictions are triggering his PTSD as he is largely being subject to solitary confinement and he feels he is imprisoned.
“The claimant remains under the care of a psychiatrist. [He] believes he should be entitled to visit family members who are also in the area.”
The letter goes on to argue that because under the regulations he cannot meet indoors anyone he doesn’t live with, he is prevented from maintaining his private life and his relationship with his partner.
It states: “While we understand the balancing act is a difficult one, it is vital that the government can justify the steps it has taken including the necessity and proportionality of interferences with rights through the measures taken.
“Assessments of the proportionality of measures must be up-to-date, based on the latest scientific evidence, and formulated as a result of a precautionary approach to minimising overall loss to life.
“Importantly, the government must be transparent in justifying its decisionmaking, including in explaining how it has balanced competing interests and the evidence on which the balancing decision has been made.
“The lockdown regulations impose swingeing restrictions on everyday life, potentially interfering with a number of human rights as protected by the Human Rights Act 1998.
“The lockdown has severely limited social interactions including between families.
“It is difficult to imagine, save for imprisonment, a more stringent limit on family and private life than preventing gatherings of two or more people in private dwellings and public places.
“From July onwards a number of ‘local lockdown’ regulations have also come into force, adding additional restrictions in particular areas.
“It appears that both the lockdown itself, and the government’s method of imposing it through emergency regulations, is likely to continue indefinitely, subject to an effective Covid-19 vaccine being developed and distributed.
“It is therefore important that the government learns from previous lockdowns and ensures that lockdowns only interfere with human rights to the minimum extent necessary.
“It is also vitally important that the Government does not discriminate unlawfully in relation to lockdown measures.
“As such, any lockdown impacts must be evidence based, necessary and proportionate — this includes consideration of what lesser alternatives could achieve the government’s aims or could alleviate the negative impact on certain groups.”
Mr O’Brien said: “Of course I accept that the Welsh Government has the right to protect the population during this pandemic.
“But I don’t have the virus and I don’t believe the restrictions – which have had a devastating impact on my relationship – are proportionate.
“A judicial review is the best way forward, not just for myself but for many others who have been affected.”
A spokesman for the Welsh Government would only say: “We confirm that we have received the correspondence.”