The news last week was that the Foreign Secretary has proposed a revival of a fourteenth century statute in order to prosecute British jihadists who travel to Iraq or Syria to fight. Cries of foul are coming from the usual quarters, and there’s even a protest that the Strasbourg Court would object, which, given the current controversy surrounding that tribunal, may be a good reason in itself for such a move.
In the current froth over the Convention versus “home grown” human rights, there is much talk of the Magna Carta. So may be of interest to some that in the opinion of one of the greatest legal scholars in history, Edward Coke, the Statute of Treason had a legal importance second only to that of the “Great Charter of the Liberties of England”, piloted by feudal barons to limit King John’s power in 1215.
Politics aside, how would this work? On the face of it, a law which has been on the statute books for centuries, and is found to be applicable to a current state of affairs, is an equum donatum whose dental health should not be examined too closely. Although the last person to be convicted under the 1351 Treason Act – the Nazi propagandist William Joyce (otherwise known as Lord Haw Haw)- was hanged, now any British citizen convicted of the offence could be given a life sentence. Continue reading
Welcome back to the UK Human Rights Roundup, your regular kicking collection of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, the legal community reacts to Tory plans to repeal the Human Rights Act. Given the significance of the proposals for human rights protection in the UK, this week’s roundup focuses on how those plans have been received. Continue reading
A Local Authority and M (By his litigation friend via the Official Solicitor) v E and A (Respondents)  EWCOP 33 (11 August 2014) – read judgment
It’s been an interesting week for the extreme fringes of maternal care. The papers report a trial where a mother is being prosecuted for administering toxic levels of medication to her daughter for “conditions that never existed” (as the court heard). Let’s see how that pans out.
And now the Court of Protection has published a ruling by Baker J that a a supporter of the discredited doctor Andrew Wakefield embarked on an odyssey of intrusive remedies and responses to her son’s disorder, fabricating claims of damage from immunisation, earning her membership of what science journalist Brian Deer calls the class of “Wakefield mothers.”
On the face of it, the detailed and lengthy judgment concerns the applicant son’s reaction to the MMR vaccination when it was administered in infancy, and whether it was the cause of his autism and a novel bowel disease, the latter being Wakefield’s brainchild. But at the heart of the case lies the phenomenon that we all used to know as Munchausen’s syndrome by proxy.
United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust  EWCA 1271 (Civ) - read judgment
Deciding whether a given consultation process conducted prior to some administrative decision was or was not sufficiently unfair to warrant challenge is not an easy task. Three connected problems commonly arise:
(1) did the public body provide adequate information to enable properly informed consultation
(2) was the consultation at a formative stage of the decision-making process, so it was a real rather than sham process?
(3) did the consultation encompass sufficient alternatives?
In this case, the judge said (see my post here) that consultees were missing important information under (1), and, on the particular facts of the case ,it should have consulted on an option which it had rejected, and so found a breach of (3).
The Court of Appeal disagreed. Both findings were wrong. The consultation process was not unfair.
Brick Court Chambers Public Law Event 2014: Is it time for the common law to break free from Europe?
Last night’s discussion at Gray’s Inn Hall featured a panel with Dominic Grieve QC MP (formerly Attorney General), Lord Judge (formerly Lord Chief Justice), Bella Sankey (Policy Director, Liberty), Martin Howe QC (member of the Commission on a British Bill of Rights), David Anderson QC (Independent Reviewer of Terrorism Legislation), all chaired by Shaun Ley of the BBC.
The Conservative Party’s proposal which sparked off the debate was that the UK will withdraw from the European Convention on Human Rights after the 2015 election unless the European Council of Ministers accepts our proposal that our own common law and statute fulfils the UK’s international obligations.
Martin Howe, a QC most closely involved with this move, simply didn’t understand why it has caused such a “furore”. Other countries, like Canada and New Zealand, have statutes setting out human rights without having to belong to a regional system. What is so inadequate about the UK’s protection of rights that it should be shackled to Strasbourg, particularly with that court’s history of spending the past sixty years
inventing entirely new doctrines, not based on the wording of the Convention – in many respects contrary to its express wording
This is an intolerable situation, Howe believes, and it has to be resolved. Continue reading
Whitston (Asbestos Victims Support Victims Support Groups Forum UK) v Secretary of State for Justice and the Association of British Insurers (Interested Party)  EWHC 3044 – read judgment
Jeremy Hyam and Kate Beattie of 1 Crown Office Row acted for the Claimant in this case. They had nothing to do with the writing of this post.
In April 2013 the rules permitting recovery of success fees under Conditional Fee Agreements (CFAs) and After The Event (ATE) insurance premiums changed in response to the Jackson proposals – with one exception, namely in respect of mesothelioma claims.
This case concerns the Lord Chancellor’s intention to bring costs rules in mesothelioma claims in line with other claims.
As many of you will know, mesothelioma is an industrial disease caused by the inhalation of asbestos. It is a rare form of cancer which generally does not become apparent until many years after exposure to asbestos, a feature which at least in the past has led to real problems when mounting a claim against those responsible for the exposure. Once the cancer does become symptomatic its progression is rapid. Most sufferers survive for less than 12 months from the onset of symptoms. Yet the effects of the disease over the period from the onset of symptoms to death are hugely painful and debilitating. This combination of factors means that litigation in relation to mesothelioma is unusual in comparison with many other types of litigation involving personal injury or industrial disease. In almost every case in which a claim is made for damages for mesothelioma the effective defendant is an insurance company. Continue reading
D’Arcy v Myriad Genetics Inc  FCAFC 115 (5 September 2014) - read judgment The recent ruling from the Full Federal Court of Australia allowing the breast cancer gene isolated in the laboratory to be patented contrasts sharply with the ruling by the US Supreme Court last year that a naturally occurring DNA segment is a “product of nature” and therefore not patent eligible merely because it has been isolated. The implications of this ruling for gene testing and patenting of biological products have been eloquently discussed elsewhere and I will not attempt to cover the same ground – see for example the excellent discussion posted by the Enhanced Genetic Services Project. All I want to point up in this post – apart from the obvious need for intellectual property law to encompass the development of science and technology – is the Australian court’s focus on how easily misled one may be by semantics in this sort of dispute. This ruling upholds an earlier decision that gene patenting is permissible under Australian law, declaring that “the boundaries of the conception of patentability are not dictated only by deductive logic from the linguistic premises formulated in the scientific knowledge of a particular age”. The concept of patentability has been broadening since the first quarter of the 17th century, and there is no reason why it should reach an artificial wall erected by unfathomable and unexplained “laws of nature” (a premise much relied upon by the US Supreme Court). I posted last year on the decision of the US Supreme Court in Association for Molecular Pathology v Myriad Genetics Inc. It will be remembered that that Court held that a sequence of DNA mimicking the BRCA breast cancer mutation could not be patented because DNA’s information sequences and all the other processes that allow the information to manufacture bodily tissues occur naturally within human cells. Continue reading