Exceptional legal aid funding should not be limited to extreme cases – Court of Appeal

legal-aidR (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others [2014] EWCA Civ 1622 – read judgment

The Court of Appeal has ruled that the Lord Chancellor’s Guidance on exceptional funding in civil legal aid is incompatible with the right of access to justice under Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. The Court has further decided that this Guidance was not compatible with Article 8 of the ECHR in immigration cases; in other words, that legal aid should not be refused when applicants for entry to the UK seek to argue that refusal of entry would interfere with their right to respect for private and family life.

This was an appeal against a ruling by Collins J in the court below that the appellant Director’s refusal to grant the respondents exceptional case funding under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in their immigration cases was unlawful. Continue reading

Judge orders blood transfusion for Jehovah’s Witness child

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An NHS Trust v Child B and Mr and Mrs B [2014] EWHC 3486 (Fam) – read judgment

I posted earlier this year a discussion of Ian McEwan’s pellucid and moving account of the difficulties encountered by judges when steering between the rock of parental faith and the hard place of children’s best interests (The Children Act, 2014).

This judgment, although handed down four months ago, has just been published, and confirms that judges may be resolute, however politely,  in the face of parents’ insistence that they know what is best for their children. 

Background Facts

The application concerned a very young child (B) who sustained burn injuries in an accident. The clinical team responsible for his care advised that the best practice treatment for his injuries was skin grafting and that there was a significant risk that he would require a blood transfusion . To avoid infection and for the best possible result, skin grafts should be carried out no later than 7 to 10 days from the initial burn. The Court was also told that in the event of a skin graft taking place without the ability to give a blood transfusion, there would be a risk of death as a result of sepsis developing. Continue reading

Cosmetics tested on animals banned in the EU – or are they?

animal-experimentation-rabbit-draize-eye-irritacy-testsR (on the application of the European Federation for Cosmetic Ingredients) v Secretary of State for Business, Innovation and Skills and the Attorney General, British Union for the Abolition of Vivisection and the European Coalition to End Animal Experiments (intervening)  [2014] EWHC 4222 (Admin) 12 December 2014 – read judgment

Conscientious shoppers who check the labelling of shampoos and other cosmetic products for the “not tested on animals” legend may not be aware that there is in place an EU Regulation (“the Cosmetics Regulation”), enforceable by criminal sanctions, prohibiting the placing on the market of any product that has been tested on laboratory animals. Any comfort drawn from this knowledge however may be displaced by the uncertainty concerning the status of cosmetics whose ingredients have been tested on animals in non-EU or “third” countries. (Incidentally the Cruelty Cutter app is designed to enable consumers to test, at the swipe of a smart phone, whether the product they are contemplating purchasing has been tested on animals.)

This case concerned the question of whether, and if so in what circumstances, that Regulation would prohibit the marketing of products which incorporate ingredients which have undergone testing on animals in third countries. It was a claim for judicial review seeking declarations relating to the marketing of cosmetic ingredients which had been thus tested. Continue reading

Cracking intercepts: the war on terror and difficulties with Human Rights

TheImitationGame-BCLiberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal [2014] UKIPTrib 13_77-,  5 December 2014 – read judgment

Robert Seabrook QC is on the panel of the IPT and  David Manknell of 1 Crown Office acted as Counsel to the Tribunal  in this case. They have nothing to do with the writing of this post.

This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character. Continue reading

Have we lost sight of J.S. Mill’s concept of the right to liberty? Article 5 in the Court of Protection

Rochdale Metropolitan Borough Council v KW (by her litigation friend Celia Walsh)   [2014] EWCOP 45 – read judgment

JohnStuartMillMostyn J has pulled no punches in rejecting an application for a declaration that an incapacitated person, being looked after in her own home, has been deprived of her liberty contrary to Article 5. There is a very full account of the judgment on the Mental Capacity Law and Policy blog so I will keep this summary short.

The first respondent, KW, is a 52 year old woman who is severely mentally incapacitated. She suffered brain damage while undergoing surgery to correct arteriovenous malformation in 1996. This resulted in a subarachnoid haemorrhage and long term brain damage. She was left with cognitive and mental health problems, epilepsy and physical disability. She was discharged from hospital into a rehabilitation unit and thence to her own home, a bungalow in Middleton, with 24/7 support. Physically, KW is just about ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). As Mostyn J says,

Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children. Her present home is held under a tenancy from a Housing Association. The arrangement entails the presence of carers 24/7 [who] attend to her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back.

Continue reading

Irish Supreme Court struggles with outcome of surrogacy arrangements

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M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chláraitheoir & ors [2014] IESC 60 (7 November 2014) – read judgment

The definition of a mother, whether she is “genetic” or “gestational” for the purpose of registration laws was a matter for parliament, not the courts, the Irish Supreme Court has ruled.

At the core of the case was the question whether a mother whose donated ova had resulted in twin children born by a surrogacy arrangement should be registered as their parent, as opposed to the gestational mother who had borne the twins.

The genetic mother and father sought her registration as “mother” under the Civil Registration Act, 2004, along with a declaration that she was entitled to have the particulars of her maternity entered on the Certificate of Birth, and that the twins were entitled to have their relationship to the fourth named respondent recorded on their Certificates of Birth. Continue reading

Family pressure group “had no business” in applying for habeas corpus on behalf of mother

6a00d83451ccc469e201a73e196361970dJustice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477 – read judgment

An  application for habeas corpus by a pressure group was completely “hopeless” and “entirely misconceived”. The appellant’s challenge to the decision of the judge below was equally devoid of merit.  Third party applications are only appropriate where the prisoner is incommunicado or where the impediment preventing the prisoner from acting is ignorance or disability. It was entirely inappropriate in these circumstances, where the prisoner had been represented by counsel throughout the proceedings which resulted in her imprisonment, or where her detention had already ended before the application for habeas corpus was made.

The principle of “habeas corpus”

The right of a stranger to apply for habeas corpus is a rather singular thing since it does not depend on that third party to be instructed by the prisoner on behalf of whom the application is being made, nor even on the knowledge of the prisoner that someone has decided to act in his/her interest in such a way.

Continue reading