Author Archives: Rosalind English

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Jihadist suspect cannot be extradited to United States because of his mental illness

prisonAswat v United Kingdom, 16 April 2013 – read judgment

The Strasbourg Court has ruled that a terrorist suspect detained in the United Kingdom’s Broadmoor hospital should not be extradited to the United States because of the risk that his mental condition would deteriorate there.

The applicant was indicted in the US in respect of a conspiracy to establish a jihad training camp in Oregon.  He was arrested in the UK in 2005 and in 2006 the Secretary of State ordered his extradition. He unsuccessfully appealed the High Court and the Court of Appeal on the grounds that his extradition would not be compatible with Article 3 of the Convention because he could be detained in a “supermax” prison. In November 2011 a mental health tribunal determined that he was suffering from paranoid schizophrenia. Continue reading →

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Court awards anonymity for victim of libellous “paedophile” allegations

How-to-Remove-Online-Defamation-Review-Using-Legal-Action-2ZAM v CFW & Anor [2013] EWHC 662 (QB) – read judgment

The permanent damage that internet publications can inflict is very much the focus of Tugendhat J’s assessment of damages in this case, encapsulated in the memorable description he quoted in an earlier judgment:

 what is to be found on the internet may become like a tattoo.

Since the advent of internet search engines, information which in the past would have been forgotten (even if it had been received front page coverage) will today remain easily accessible indefinitely. So a libel claimant who has a judgment in his favour nevertheless risks having his name associated with the false allegations for an indefinite period.

This is just what had happened in the present case. The second defendant’s liability for libel had already been established. This hearing was to assess the appropriate level of damages for allegations he had published on the internet, in breach of restraining orders against him, suggesting the claimant was guilty of misappropriation of family funds and paedophilia.   Continue reading →

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Doctor entitled to rely on GMC’s assurance that his Caribbean qualification would be acceptable in UK

785px-Doctors_stethoscope_1Patel, R(on the application of) v The General Medical Council  [2013] EWCA Civ 327 – read judgment

Kate Beattie of 1 Crown Office Row was led by Richard Drabble QC for the appellant in this case. She has nothing to do with the writing of this post.

The registration criteria for doctors trained abroad have been changed to respond to abuse by medical schools claiming false affiliations with the institutions listed in the WHO Directory. Although the 2006 rules effecting this change were lawful,  the appellant had a legitimate expectation that he could rely on individual and specific assurances that he would be allowed to register on completion of his training.

The appellant, a qualified pharmacist, wished to qualify as a doctor. He sought assurances from the GMC that his part time course with a medical school in St Kitts. affiliated with the London College of Medicine, would lead to an acceptable qualification. The GMC’s replies indicated that it would be. He performed his pre-clinical studies by distance learning at IUHS in St. Kitts and then completed his supervised clinical rotations at United Kingdom hospitals. This course clearly represented a huge investment of time and money by the appellant.  However, registration of his Primary Medical Qualification (PMQ) was subsequently refused because the registration criteria had been changed. Continue reading →

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Frivolous Atmospherics

1563029463_f7bb4c814fis what the technology giant Myriad calls the US First Amendment and other human rights arguments raised by their opponents in the litigation concerning Myriad’s patents over cancer gene sequences BRCA1 and BRCA2.

We’ve been here before, in this previous post and in this, and next week the US Supreme Court starts hearing arguments in the latest round of this battle. The only reason for mentioning the issue now is to draw attention to  a fascinating article by US science historian Daniel Kevles in a recent edition of the New York Review of Books.

The author provides a dispassionate view of patent law, from its roots in the philosophy of the American revolution, which gave birth to the “Progress Clause” in the American Constitution. Clause 8 authorises Congress

to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Continue reading →

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Detention pending deportation without regular review breaches Article 5 of the Convention

prison2aAbdi v United Kingdom (application no. 27770/08) 9 April 2013 - read judgment

The Strasbourg Court has ruled that a Somali national’s detention pending deportation was not lawful under domestic law.

The following summary is based on the Court’s press release:

The applicant, Mustafa Abdi, is a Somali national who is currently detained in HMP Brixton. Mr Abdi arrived in the United Kingdom on 7 May 1995 and, although refused asylum, was granted exceptional leave to remain in the United Kingdom until February 2000. On 23 July 1998 he was convicted of a number of offences, including rape, and sentenced to eight years’ imprisonment. On 20 May 2002 the Secretary of State for the Home Department ordered Mr Abdi’s deportation and on 27 May 2002 he issued an authority for detention until the making of a deportation order. On 3 September 2003 Mr Abdi’s release became automatic; however he remained in detention on the basis of the authority issued on 27 May 2002. On 5 April 2004 the Secretary of State for the Home Department authorised Mr Abdi’s detention until his deportation. Continue reading →

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We shall fight, on the beaches

_50586770__49414358_2b0a52bb-7425-4bca-b5ff-2253df1dc7fa-1The Queen (on the application of Newhaven Port and Properties Limited (Respondent)) v East Sussex County Council (Appellant) and Newhaven Town Council (Interested Party)  [2013] EWCA Civ 276 - read judgment

This is a tale of common law rights, open water swimming, and individual freedoms. It is about the flip side of codified human rights: the time-honoured principle, that that which is not specifically prohibited, is – or should be – permitted in English law.

Our current preoccupation with certain sorts of intolerance must not allow us to lose sight of  another threat to our individual freedoms: the encroaching requirement that our use of wild spaces is subject to the permission of the public authority who happens to be vested with certain statutory power over the land in question.  This ruling confirms, if it needed confirming, that “toleration” does not mean the same as “permission”. If we allow the one to collapse into the other, the inference will become widespread that use of such land is permissive by virtue of an implied licence, a licence which can be easily withdrawn at any time.  Continue reading →

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Enforcement of custody in the face of children’s dissent: should law prevail?

Father-and-child-holding--006Raw and others v France – read judgment (only available in French)

This complicated inter-jurisdictional battle between estranged parents is a stark illustration of how difficult it can be in these sorts of cases to apply the law in the fog of family warfare.

Even though the mother’s case was upheld in the Strasbourg Court, one can tell from the modesty of the damages awarded and the strength of the minority opinions that the judges were extremely reluctant to apply hard letter law to the complicated case before them. Indeed in one partially concurring judgment, Judge Nussberger found it distinctly odd that the mother was able to join the children as parties, in the light of their opposition to her wish that they leave their father to join her. Continue reading →

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Policy allowing cross-gender searches in prisons not unlawful, says High Court

searchThe Queen (on the Application of James Dowsett) v Secretary of State for Justice [2013] EWHC 687 (Admin) – read judgment

The secretary of state’s policy in respect of rub-down searches of prisoners, which allows cross-gender searches in the case of male prisoners but not for female prisoners, does not discriminate against male prisoners on grounds of sex.

Background

The claimant, who has been a serving prisoner since 1989, challenged Secretary of State’s policy made under section 47(1) of the Prison Act 1952. This is the policy on so-called “rub-down” searches and, in particular, the policy that a male prisoner cannot normally object to such searches conducted by a female prison officer other than when his case falls within the exceptions based on “religious” or “cultural” grounds (a cultural ground means an objection that arises from a sincerely and deeply held belief, so it is not clear how this ground differs from religion). In consequence, the claimant had been searched by female officers on many occasions. Current policy with regard to female prisoners was that they could only be searched by female staff.  Continue reading →

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Exclusion of Iranian dissident lawful, says Court of Appeal

Maryam-Rajavi2009R (on the application of) Lord Carlile of Berriew and others v Secretary of State for the Home Department 20 March 2013  [2013] EWCA Civ 199 - read judgment

 Last year the Divisional Court upheld the Home Secretary’s decision to prevent a dissident Iranian politician coming to the United Kingdom to address the Palace of Westminster: see that decision here and my post discussing the “Politics of Fear” here.

In this appeal, the parliamentarians contended that the Divisional Court had failed to consider the proportionality of the exclusion decision with sufficient scrutiny, and, by giving precedence to the possibility of unlawful actions by the Iranian regime, had given inadequate weight to the rule of law. It was perverse, they said, to justify the exclusion decisions by reference to risks to local staff and British government property in Tehran. Furthermore they argued that there had been unfairness in failing to consult the Parliamentary appellants. Continue reading →

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The Patentability of Human Genes: more developments

Breast Cancer in DNA StrandsCancer Voices Australia v Myriad Inc 13 February 2013 – read judgment

Another battle in the war against gene patenting has been lost, this time in Australia.

The US litigation is still ongoing, with the US Court of Appeals for the Federal Circuit upholding Myriad’s patents on DNA sequenced in the laboratory: see my post on that judgment. On 30 November 2012, the US Supreme Court announced that it would hear an appeal in the Myriad case. The US law in relation to the patentability is therefore not likely to be settled until the Supreme Court reaches it own decision on the issue.

This Federal Court ruling in Australia has now endorsed the government’s rejection of calls for an outright ban on the patenting of genes  by ruling that  isolated nucleic acid (including isolated DNA and RNA) is patentable.   Continue reading →

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Satirical insult of head of state should not be a criminal offence, rules Strasbourg

PRS AUTOCEon v France, no. 26118/10   14 March 2013- read judgment (in French only)

The applicant, Hervé Eon, is a French national, a socialist and anti-GM activist living Laval (France). The case concerned his conviction for insulting President Sarkozy.

During a visit by the President to the département of Mayenne on 28 August 2008, Mr Eon had waved a placard reading “Casse toi pov’con” (“Get lost, you sad prick”), a phrase uttered by the President himself several months previously when a farmer had refused to shake his hand at the International Agricultural Show. The utterance was widely disseminated in the media and on the internet, attaining the status of a slogan. Continue reading →

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Disclosure of ill-treatment allegations would breach nurse’s human rights, rules High Court

nursing-homeR (on the application of A) v the Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) – read judgment

This was an application for judicial review, and a claim under the Human Rights Act 1998, in respect of the defendant’s decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate dated 12th October 2012.

Background

In August 2012, the defendant received a request from the Criminal Records Bureau  for an enhanced check to be made in respect of the Claimant concerning her proposed employment by Nightingales 24 7 as a registered nurse. The information related to the alleged mistreatment of several elderly and vulnerable adults resident in the care home in which [A] worked as a Registered General Nurse.  The allegations were made by the residents and the health care workers in the charge of A, a registered nurse who qualified in Nigeria. She claimed that these allegations had been made maliciously because the health care assistants resented the way in which she managed them. She also claimed that some of the allegations were motivated by racism. Continue reading →

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Would resurrected Neanderthals have human rights?

mm75890804271827A newsflash on the eve of the May 2010 elections was instantly eclipsed by the news of the coalition-bartering in the days that followed. But it concerned one of the most important scientific discoveries of the year, if not the century.

Evolutionary biologists at the Max Planck Institute for Evolutionary Anthropology in Germany had finished sequencing the Neanderthal genome. In the publication of their results the team pointed up the similarity between the four billion pairs of Neanderthal DNA and stretches of the human genome, suggesting  that humans and their ancient hominid cousins must have interbred some time after modern Homo Sapiens left Africa, meaning that elements of Neanderthal genome is present in non-African modern humans. The study found that 2.5 percent of the genome of an average human living outside Africa today is made up of Neanderthal DNA.  Continue reading →

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Fine tuning medical diagnoses to rare genetic disorders

298x232-dna_genetic_test-298x232_dna_genetic_testMeiklejohn v St George’s Healthcare Trust [2013] EWHC 469 (QB) – read judgment

Richard Booth of 1 Crown Office Row acted for the claimant in this case. He is not the author of this post.

There is no doubt that medical diagnosis and therapy are struggling to keep pace with the genetic information pouring out of the laboratories and sequencing centres. And the issue of medical liability is being stretched on the rack between conventional treatment and the potential for personalised therapy. Treatment of disease often turns out to be different, depending on which gene mutation has triggered the disorder. However fine tuned the diagnosis, it may turn out to be profoundly wrong in the light of  subsequent discoveries.

This is perhaps an oversimplified characterisation of what happened in this case, but it exemplifies the difficulties facing clinicians and the courts where things go wrong, against the backdrop of this fast-moving field of scientific endeavour. Continue reading →

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Successful challenge to closures of children’s heart surgery units

4630624R on the application of Save our Surgery Ltd v Joint Committee of Primary Care Trusts (Defendant) and Newcastle Upon Tyne Hospitals NHS Foundation Trust (interested party) [2013] EWHC 439 (Admin) – read judgment

Philip Havers QC, Jeremy Hyam of 1 Crown Office Row represented the claimant in this case, and Marina Wheeler of 1COR acted for the defendant. None have them have anything to do with the writing of this post.

In this latest challenge to the reconfiguration of paediatric heart surgery services., the Administrative Court has held that an NHS plan to end child heart surgery at a number of centres in the UK was flawed for lack of consultation (see Martin Downs’ post on a previous challenge to this consultation). 

As Martin predicted, fairness and consultation have proved to be more solid ground from which to launch a missile against the NHS reconfiguration plan. This plan followed the findings of the Public Inquiry into deaths at Bristol Royal Infirmary (the “Kennedy report”) and was meant to address the “fragmented and uncoordinated” nature of this surgery across the country. The inquiry found that up to 35 children had died as a result of sub-standard care during heart surgery. As a result, a specialist panel, the Joint Committee of Primary Care Trusts (JCPCT), was set up to encourage the development of specialisation by reducing the number of centres providing paediatric cardiac services. Continue reading →