HRA damages awarded in date rape cases

Met-police-Scotland-Yard-007DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 2493 (QB), Green J  - read judgment

This is an important summary of the principles applicable to HR damages, particularly in circumstances where there have been other payments already made arguably in respect  of the acts in question. So it should be first port of call if you have an HR damages problem, not least because it gathers all the learning together.

Green J decided in March 2014 that the police had a duty to conduct investigations into particularly severe violent acts in timely and efficient manner, and that there had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so-called “black cab rapist”, one John Worboys. This amounted to a breach of the of the victims’ rights under Article 3 of the ECHR. See Rosalind English’s post on the liability judgment here

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State immunity does not avail Saudi Prince

curvedsophaHarb v. HRH Prince Abdul Aziz Bin Fahd Abdul Aziz, Rose J, [2014] EWHC 1807 (Ch), 9 June 2014 - read judgment

Rosalind English posted in January 2014 (here) on Jones v. the United Kingdom ((judgment here), in which the Strasbourg Court decided that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach Article 6(1) of the Convention (access to court).  The Court held that a grant of state immunity  reflected generally recognised rules of public international law and so there had been no violation.

The current claim involves a Saudi Prince, and his late father, King Fahd, but its subject matter is very different. Mrs Harb, the claimant, says she married King Fahd secretly in 1969: see the photo of them in happier times. The King agreed to provide for her after their separation, Mrs Harb says, and the Prince was involved in agreeing the details of this. Mrs Harb then brought matrimonial proceedings against the King, whilst alive, which were dismissed on grounds of state immunity. On appeal, the CA (judgment here) decided that these proceedings had come to an end by virtue of the King’s intervening death in 2005.

The present proceedings consisted of a claim for breach of contract in respect of the agreement concluded by the Prince on behalf of his father – said to involve £12m and two large Central London properties. The Prince pleaded state immunity, but this plea was dismissed by Rose J in today’s judgement.
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Our advance directives about how we should die should be respected – Court of Protection

brain-in-head

UPDATE | The 1COR event which this post previously referred to is now full, so please do not turn up unless you have registered.

Sheffield Teaching Hospitals NHS Foundation Trust v TH and Anor [2014] EWCOP (22 May 2014) – read judgment

In a careful and humane judgment, the Court of Protection has demonstrated that the law is capable of overlooking the stringent requirements of the conditions governing advance directives, and stressed that a “holistic” view of the patients’ wishes and feelings must be adopted, if those point to the withdrawal of life saving treatment.

Background

TH was admitted to the Northern General Hospital in Sheffield earlier this year. His general health revealed a background of known alcohol excess, and he had suffered neurological damage involving seizures and severe depression of consciousness.

 

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“A gilded cage is still a cage” – Supreme Court on deprivation of liberty for the mentally incapacitated

bird503_mediumSurrey County Council v P and Others, Equality and Human Rights Commission and others intervening [2014] UKSC 19  (March 19, 2014) – read judgment

Elizabeth-Anne Gumbel QCHenry Witcomb and Duncan Fairgrieve of 1 Crown Office Row represented the AIRE Centre, one of the intervening parties, in this case. None of them have anything to do with the writing of this post.

Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified. Continue reading

Gestational parents, non-genetic mothers, siblings with different mothers: family law in a quandary

Orig.src_.Susanne.Posel_.Daily_.News-dna_baby_wombG (Children), Re [2014] EWCA Civ 336 (25 March 2014) – read judgment

This interesting family dispute demonstrates the tension between legal parenthood and biological parenthood in times when both legislation and common law are struggling to keep up with the possibilities offered by reproductive medicine; where a child can be born with no biological relationship with its gestational parent, or, conversely, where children can be borne of two separate mothers and yet be full genetic siblings.

Background

The appellant and respondent had been in a lesbian relationship for some years.  Following unsuccessful attempts by the respondent to conceive using her own eggs, the appellant agreed to donate eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous donor. The embryos were implanted in the respondent who carried and gave birth to the twins. Continue reading

No duty to investigate in respect of civilian deaths in Malaya in 1948

malayaKeyu and Others v Secretary of State for Foreign and Commonwealth Office and another [2014] EWCA Civ 312, 19 March 2014 – read judgment

After an interesting analysis of the time limits for claims under Convention in response to a claim made in relation to actions by British soldiers in Malaya in 1948, the Court of Appeal dismissed all their  human rights, customary international law and Wednesbury  arguments.  There was no obligation in domestic law for the state to hold an inquiry into the deaths of civilians killed by British soldiers  in colonial Malaya in 1948, even though the Strasbourg Court might well hold that such a duty ensued.

Background

After the defeat of Japan in WWII and their withdrawal from Malaysia, there ensued a bitter conflict between Malaysian civilians Chinese-backed communist insurgents. In 1948 Commonwealth forces got involved and there ensued a guerrilla war fought between Commonwealth armed forces and the Malayan National Liberation Army (MNLA), the military arm of the Malayan Communist Party (MCP), from until 1960. Continue reading

Police bid to obtain journalistic material refused – Supreme Court

Met-police-Scotland-Yard-007R (on the application of British Sky Broadcasting Limited) (Respondent) v The Commissioner of Police of the Metropolis (Appellant) [2014] UKSC 17 – read judgment

This was an appeal from a ruling by the Administrative Court that it was procedurally unfair, and therefore unlawful, for BSkyB to have had a disclosure order made against it without full access to the evidence on which the police’s case was based and the opportunity to comment on or challenge that evidence.  The following report is based partly on the Supreme Court’s press summary (references in square brackets are to paragraphs in the judgment):

Factual background

Sam Kiley is a journalist who has for many years specialised in covering international affairs and homeland security. In 2008 he was an “embedded” journalist for a period of months within an air assault brigade in Afghanistan, where he was introduced to AB. CD was also serving in Helmand at the same time.  Continue reading

High Court rules dead partner’s sperm can be kept despite lack of written consent

Sperm, microscopicElizabeth Warren -v- Care Fertility (Northampton) Limited and Other [2014] EWHC 602 (Fam) – Read judgment / court summary 

The High Court has ruled in favour of a 28-year-old woman who wanted her late husband’s sperm to be retained even though the correct written consent was not in place. Mrs Justice Hogg (‘Hogg J’) ruled that Mrs Warren has a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent by her deceased husband.

Mr Brewer had put his sperm into storage in April 2005 in order to enable his wife, Elizabeth Warren, to conceive a child by him after his death. However, he was not advised by his Clinic as to the statutory steps he needed to take in order for his sperm to be stored for longer than 10 years. In the event, he sadly passed away shortly before the lawful expiry of his consent, leaving his widow insufficient time to decide whether she wished to conceive his child.

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Police have “Osman” duty to investigate in date rape cases

Met-police-Scotland-Yard-007DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) - read judgment

The police have a duty to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner. There had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so called “black cab rapist” amounting to a breach of the of the victims’ rights under Article 3 of the ECHR.

The claimants were among the victims of the so called “black cab rapist” (W), who over a six year period between 2002 and 2008 had committed more than 100 drug and alcohol assisted rapes and sexual assaults on women whom he had been carrying in his cab. Both DSD and NVB complained to the police, who commenced investigations, but failed to bring W to justice until 2009. Under the common law the police do not owe a duty of care in negligence in relation to the investigation of crime: See Hill v Chief Constable of West Yorkshire [1989] AC 53 per Lord Keith at pp. 63A-64A and per Lord Templeman at p. 65C-E; Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495; and Smith v Chief Constable of Sussex [2009] 1 AC 225.

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Human rights and public law challenge to prisoner’s release conditions fails

Prisoners releaseR(Gul) v Secretary of State for Justice [2014] EWHC 373 (Admin) – read judgment

Mr Gul had been imprisoned for a period, on 24 February 2011, for disseminating terrorist publications. When he was released on 6 July 2012, this was under licence, as is common following the release of dangerous prisoners. Mr Gul challenged some of the conditions of his licence by judicial review. The court rejected his challenge.

The purposes of releasing offenders from prison on licence, allowing them liberty under conditions to be supervised by a probation officer, are clear enough – protecting the public, preventing reoffending, and securing the successful reintegration of the prisoner into the community, as set out in Section 250 (8) Criminal Justice Act 2003.

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How not to get a pre-inquest review wrong

Coroners-CourtBrown v. HM Coroner for Norfolk [2014] EWHC 187 (Admin) - read judgment

This is the sad tale of a young woman aged 31 dying in mysterious circumstances where the inquest went off entirely on the wrong footing. Joanne Foreman was not a diabetic but lived with a young boy who was. It was suspected that on the night before she died she had drunk heavily and then injected herself with insulin. The inquest proceeded on this basis. Nobody told the expert that the paramedics had taken a blood glucose from Joanne, which was entirely normal.  Once this was known, it was obvious that the court would quash the findings at inquest and order a new inquest.

But the case contains powerful guidance from the Chief Coroner (sitting as a judge on this decision) about how to conduct the pre-inquest review.

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How to be fair about transfer to Broadmoor

hospitalR (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 read judgment

Jeremy Hyam of 1 Crown Office Row was for the Trust. He was not involved in the writing of this post.

L, aged 26, was in a medium security hospital for his serious mental health problems. Concerns about his animus towards another patient arose, and the Admissions Panel of Broadmoor (a high security hospital) agreed to his transfer. It did so without allowing his solicitor to attend and without giving him the gist of why his transfer was to be made.

So far, so unfair, you might think, as a breach of the common law duty to come up with a fair procedure.

But the next bit is the difficult bit. How does a court fashion a fair procedure without it becoming like a mini-court case, which may be entirely unsuitable for the issue at hand? This is the tricky job facing the Court of Appeal. And I can strongly recommend Beatson LJ’s thoughtful grappling with the problem, and his rejection of the “elaborate, detailed and rather prescriptive list of twelve requirements” devised by the judge, Stadlen J.

Note, though L eventually lost, the CA considered that proceedings were justified because of their wider public interest. Something for Parliament to deliberate upon when it debates Grayling’s proposed reforms for judicial review: see my recent post.

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Honeymoon murder suspect can be extradited to South Africa, says High Court

dewani1Government of the Republic of South Africa v Dewani  [2014] EWHC 153 (Admin) 31 January 2014 – read judgment

Shrien Dewani, the British man facing charges of murdering his wife on honeymoon in South Africa, has lost his appeal to block extradition there (so far three men have been convicted in South Africa over Mrs Dewani’s death). The Court ruled that it would not be “unjust and oppressive” to extradite him, on condition that the South African government agreed to return him to the UK after one year if his depressive illness and mental health problems still prevented a trial from taking place. Continue reading

Does the EU Rights Charter apply to private disputes? Sometimes, sometimes not…

European-Union-Flag_1Association de médiation sociale v Union locale des syndicats CGT, Hichem Laboubi, Union départementale CGT des Bouches-du-Rhône, Confédération générale du travail (CGT), Case C‑176/12 – read judgement

The Grand Chamber of the Court of Justice of the European Union has ruled on whether the Charter of Fundamental Rights of the European Union can apply in a dispute between private parties, although it is not quite clear what its conclusion implies.

This was a request for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), received by the CJEU in April last year. Continue reading

State immunity upheld against human rights challenges in Strasbourg

Saudi_mapJones and Others v. the United Kingdom (application nos. 34356/06 and 40528/06) – read judgement

The Strasbourg Court has ruled that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach the Convention.  The Court held that a “grant of immunity to the state officials in the present case reflected generally recognised rules of public international law”  and that there had been no violation of  Article 6 (right of access to court).

The claimants argued that there there was emerging support for a special exception to this immunity in cases concerning civil claims for torture lodged against foreign State officials. But the Court took the view that the bulk of the authority was to the effect that the State’s right to immunity may not be circumvented by suing its servants or agents instead. The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity. Continue reading