The patentability of living things: the latest in the BRCA gene saga

298x232-dna_genetic_test-298x232_dna_genetic_testD’Arcy v Myriad Genetics Inc [2014] 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

Council’s decision to close elderly care home not unlawful

ammaoldagehomeKaria, R (on the application of) v Leicester City Council (Sir Stephen Silber, acting as High Court Judge)  [2014] EWHC 3105 (Admin) (30 September 2014)- read judgment

In a robust judgment Sir Stephen Silber has asserted that neither the ordinary laws of judicial review, nor the Equality Act nor the Human Rights Act require the courts to micro-manage the decisions of public authorities. Indeed the latter two statutory powers are not designed as a back door into a merits review of a decision that is restricted to the court’s review of the legality of a public sector decision.

Background facts and law

The claimant, a 101 year old woman of Gujarati descent, challenged the decision to close the care home which she has occupied since 1999. Her grounds of challenge were threefold:

1. that the Council had failed to take account of material issues of fact relating to the present and future levels of demand for residential care one provision

2. that it had reached its decision without due regard to the need under the Equality Act 2010 to avoid unlawful discrimination in the provision of services

3. and it had failed to take into account the impact of the closure on the claimant’s Article 8 rights

She also complained that she had a legitimate expectation of a home for life at Herrick Lodge and that the Council had not considered whether her needs could be met in alternative placements.

Although the judge was at pains to stress that as this was a judicial review application, it was not for him to assess the merits of the Council’s decision, merely its legality. Having done so, he concluded that the Council had not acted irrationally, nor had it  paid due regard to the need to advance equality of opportunity.

It is not for the Court to determine whether proper weight has been given to a factor where as here there has been proper appreciation of the potential impact of the decision on equality issues.

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“What’s in a name”? Privacy and anonymous speech on the Internet

internet-anonymityKeynote speech by Lord Neuberger at 5 RB Conference on the Internet, 30 September 2014

The President of the Supreme Court has delivered a very interesting address on the protections that should be afforded to what might be termed the “new Fourth Estate” – journalism on the internet. The following summary does not do justice to his speech but is meant to act as a taster – download the full text of his talk here.

Lord Neuberger explores the interrelationship of privacy and freedom of expression, particularly in the light of developments in IT, and especially the internet. He recalls a colourful eighteenth century figure who contributed a series of letters to a widely disseminated journal under the pseudonym of “Junius”. He managed to make such effective attacks on public figures he brought about the resignation of the Prime Minister, the Duke of Grafton, in 1770. Because of his anonymity this character was able to make criticisms of the powerful for which others of his time faced prosecution.

Junius offered a voice of firm if sometimes scurrilous criticism, prompting both political and legal change. He is rightly remembered as one of the greatest political writers in an age dominated by great figures, yet his identity [still]  remains a mystery.

And it is this lack of traceability that links Junius with today’s bloggers. Print journalists are – with the exception of writers for The Economist – known figures. But forty percent of the world’s population use the internet, and despite initial expectations that bloggers and tweeters could hide behind pseudonyms, it has turned out to be extremely difficult for internet writers to maintain their anonymity. The public and the courts increasingly recognise the press’ interest in publishing the names of individuals in appropriate circumstances. Continue reading

When does a righteous campaign shade into harassment?

Chessington_World_of_Adventures_Kobra2Merlin Entertainments LPC,  Chessington World of Adventures Operations and others v Peter Cave [2014] EWHC 3036 (QB)  25 September 2014 – read judgment 

This case explores the extent to which a campaign of criticism, conducted by internet and email, can merit restraint by the civil courts. As the judge says, whatever the aims of the campaign in question, its supporters may, in the course of their activities, annoy, irritate, and upset companies and individuals.  But should the courts interfere, before the question whether the campaign is justified has been decided?  And to what extent is such a campaign a criminal offence?

This particular dispute concerned a series of communications by the defendant to the general public about the inadequacy of safety measures and other shortcomings of the claimants’ amusement parks. The claimants contended that Dr Cave’s communications with the public and with their employees were defamatory, and in breach of confidence, and that they were thereby entitled to stop him, before any trial, by relying on the statutory tort of harassment. They therefore applied for an interim injunction restraining the defendant from setting up websites and sending mass emails regarding the issue of safety in theme parks. The question before the judge was whether they should wait until they had established defamation and/or breach of confidence, before the court granted a remedy. Continue reading

Law of armed conflict means that anti-detention provision in ECHR may be disapplied re Iraqi detainee

camp-bucca1Hassan v. the United Kingdom (application no. 29750/09) ECHR 936 (16 September 2014) – read judgment

This case concerned the capture of an Iraqi national, Tarek Hassan, by the British armed forces and his detention at Camp Bucca in southeastern Iraq during the hostilities in 2003. The complaint was brought by his brother, who claimed that Tarek had been under the control of British forces, and that his dead body was subsequently found bearing marks of torture and execution.  In essence, the case raised issues concerning the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the European Convention of Human Rights in the context of an international armed conflict. This was the first case in which a contracting State had requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law, which allows the internment of prisoners of war at times of international conflict.

The Grand Chamber held that although Tarek Hassan had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops until the moment of his release; there had been no violation of Article 5(1), (2), (3) or (4) (right to liberty and security) of the European Convention on Human Rights as concerned his actual capture and detention. The European Convention had to be interpreted in parallel with international instruments which applied in time of war. Four out of the seventeen judges dissented on this point. Continue reading

A novelist enters the Family Division

71BL6-VNgqL._SL1500_In his prolific career, writer Ian McEwan has brought us into the minds of physicists, neurosurgeons, conductors,  cultural and cold war spies and even stalkers. His most recent triumph is to have stepped deftly into the life of a High Court judge in the Family Division.

The Children Act is a short novel of great subtlety and tenderness. In his acknowledgements he says he has drawn on a “superbly written judgment” by Sir James Munby evaluating a child’s best interests in a dispute over ultra-orthodox education of the child of estranged Jewish parents (see Karwan Eskerie’s post on this case). One can see how McEwan was inspired by the judge’s nuanced approach, in which he sought to balance the significance of social and familial links as against an individual’s wellbeing; after all, a novelist’s job is to explore the nature of unhappiness. How irresistible then is an institutional figure whose very job it is to determine happiness and its opposite? Continue reading

Students without indefinite leave to remain are ineligible for student loans

loanimage0 R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 1216 (31 July 2014) - read judgment

The United Kingdom was not in breach of the human rights of those individuals ineligible for student loans because they did not have indefinite leave to remain in the country. The relevant legislation limits eligibility for student loans to those who are “settled” in the United Kingdom (within the meaning of the Immigration Act 1971 ) and who have been ordinarily resident in the UK for three years. According to the Court of Appeal, requiring the Secretary of State to link criteria for educational  eligibility to changes in immigration rules would “enmesh” him into immigration policy:

His picking and choosing candidates for settlement as eligible for student loans, while not … unconstitutional, would be a fragile and arbitrary basis for policy in an area where clarity and certainty are required.

This appeal turned on  issues in relation to the right to education under Article 2 of the first protocol (A2P1) and the prohibition of discriminatory treatment under Article 14 of the European Convention on Human Rights.

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