Supreme Court rejects right to die appeals

Tony NicklinsonR (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38 - read judgment

On appeal from [2013] EWCA Civ 961

The Supreme Court has declined to uphold a right to die a dignified death.  However, a glimmer is is to be found in this judgment in that two out of the seven justices who concluded that it was for the United Kingdom to decide whether the current law on assisted suicide was incompatible with the right to privacy and dignity under Article 8, would have granted such a declaration in these proceedings., particularly where the means of death was one that could have been autonomously operated by the disabled appellant, leaving no doubt as to the voluntary and rational nature of his decision.

But the majority concluded that this was a matter for Parliament, not for the Courts.

The following summary is from the Supreme Court’s Press Summary

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These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (“the Convention”), and whether the code published by the Director of Public Prosecutions (“the DPP”) relating to prosecutions of those who are alleged to have assisted suicide is lawful. Continue reading

“Europe needs the Convention and Europe needs the Court”

PhaleTwo fascinating speeches to recommend.

Lord Phillips, former Supreme Court President, gave a thoughtful speech at Kings College on whether human rights are a “force for good or a threat to democracy”. He expressed quite significant concerns over some recent Strasbourg decisions on jurisdiction, prisoner votes etc. (you know the drill – see Rosalind’s post on the other senior judges/former judges speaking their minds).

The conclusion he reaches, on balance but also with “no hesitation”  is that “Europe needs the Convention and Europe needs the Court. … Strasbourg is a powerful force for good.

I really must do a chart of the senior judiciary and ex-judiciary’s positions on Strasbourg. They are falling over themselves to express a view.

Meanwhile, over at the Law Society of Ireland, Lady Hale gave a speech on Freedom of Religion and Belief, which readers will know is one of this blog’s pet topics (see our other posts on religion).

Old and minor convictions and cautions need not be disclosed – Supreme Court

criminal-background-checkR (On the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants) - read judgment

The Supreme Court has unanimously declared that government rules regarding the disclosure of spent convictions are unlawful and incompatible with Article 8 of the Convention.

One of these conjoined appeals involved T,  who was prevented from employment involving contact with children when  a police caution was disclose in respect of the theft of two bicycles when the respondent was eleven years old (see my previous post on the Court of Appeal judgment in T). In JB, the police issued a caution to a 41 year-old woman in 2001 when she was caught shoplifting (a packet of false fingernails).  In 2009 she completed a training course for employment in the care sector. She was required to obtain an “enhanced criminal record certificate” or ECRC, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector. Continue reading

Supreme Court revises confiscation order via A1P1

_41773060_mtic_carousel416x302R v Ahmad and others [2014] UKSC 36, 18 June 2014 – read judgment

A bit of a familiar refrain in which A1P1, the right to property, comes in and stops an order being made which would otherwise be lawful under statute: see my recent post here on the Eastenders case.

The case concerns confiscation proceedings following the conviction of two sets of defendants for carousel fraud.  A carousel fraud involves setting up a whole series of paper transactions to generate an apparent entitlement to reclaim VAT from the tax man: see the pic for an example. The VAT is repaid, at which point the money, and the fraudsters, disappear into the dust. But in these cases, they were found, prosecuted and confiscation orders made against the individuals to try and get the money back.

In the first case, the Ahmad defendants ran a company MST, and took £12.6m (£16.1m uprated for inflation) off the taxman. In the second, the Fields defendants got £1.6m (including inflation) via their company, MDL.

In each case, the order was made in those sums against each individual defendant. So each Ahmad defendant was ordered to pay £16.1m, even if some of that £16.1m was thereafter repaid by another defendant. It was this element of the order which the Supreme Court revised.

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Do Not Resuscitate notices: Patients’ rights under Article 8

Hospital-BedR (on the application of David Tracey, personally and on behalf of the estate of Janet Tracey (deceased)) v Cambridge University Hospital and The Secretary of State for Health with the Resuscitation Council and Others intervening (17 June 2014) [2014] EWCA Civ 822 – read judgment

Philip Havers QC, Jeremy Hyam and Kate Beattie of 1 Crown Office Row represented the appellant in this hearing. They have nothing to do with the writing of this post.

The Court of Appeal has declared that the failure of a hospital to consult a patient in their decision to insert a Do Not Attempt Cardiopulmonary Resuscitation Notice in her notes was unlawful and in breach of her right to have her physical integrity and autonomy protected under Article 8.

The Resuscitation Council, intervening, made the point that in recent years there has been a reduction of inappropriate and unsuccessful attempts at CPR . Their concern was that a judgment requiring consultation with the patient save in exceptional cases would be likely to reverse that process.

Background Facts

The wife of the appellant, Mrs Tracey, had been diagnosed with lung cancer in February 2011 and given nine months to live. Two weeks after this diagnosis she sustained a serious cervical fracture in a major road accident and was placed on a ventilator in a critical condition. When the medical team reviewed her treatment, a first Do Not Attempt Cardiopulmonary Resuscitation Notice was placed in her notes. However, she was subsequently successfully weaned from the ventilator and her condition appeared to improve. A few days later her condition deteriorated again and a second DNACPR notice was completed. Mrs Tracey died on 7 March. Continue reading

Whose Magna Carta is it anyway?

90291Yesterday was Magna Carta Day. It is now only 364 days until the 800th anniversary of the sealing of England’s oldest charter of rights, and one of the world’s most influential legal documents.

There will be much celebration in the coming year, and rightly so. Despite its age, Magna Carta is still partly on our statute books. It represents the first legal constraints imposed on the English king by his subjects. It has influenced every major rights law since – notably, the United States Constitution and the European Convention on Human Rights, both of which are very much still in force.

According to the Magna Carta Trust, there will be eight century beer, festivities, new books, an opera, a calypso tribute and even a new roundabout on the A308 at Runnymede. And if a new roundabout isn’t “English” enough for you, there will of course be lots of dressing up in silly costumes.

But along with celebration, there will be disagreement. It has already started. Continue reading

Secret Trials, Social Media Prosecutions and Labour’s Rights Vision – the Human Rights Roundup

Twitter HRRWelcome back to the UK Human Rights Roundup, your regular summer festival 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, secret trials and Labour’s stance on the Human Rights Act 1998 have generated discussion. In other news, the Supreme Court reconsiders whether religious doctrine is a justiciable question for the courts. 

In the News Continue reading

Secret trials – a little transparency, a lot to worry about – Lawrence McNamara

RCJ restricted accessGuardian News and Media Ltd -v- AB CD – Read preliminary judgment

The Court of Appeal has published its decision in Guardian News Media v AB and CD. It is not a judgment, the Court says. Judgments – plural – will be given “in due course.” Still, the 24 paragraph decision contains the order and explanation of the order, and gives an indication of some of the reasons that will follow.

Is this a good decision? It is better than it might have been, but there are still deeply worrying problems.

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Supreme Court reduces religious no-go area for courts

400px-uk_supreme_court_badgeKhaira v. Shergill [2014] UKSC 33, 11 June 2014   read judgment

Adam Wagner assisted two of the respondents in this case on behalf of Bindmans, solicitors, but was not involved in the writing of this post.

 

The Supreme Court has just reversed a decision of the Court of Appeal (see my previous post here) that a dispute about the trust deeds of two Sikh religious charities was non-justiciable and so could not and should not be decided by the Courts. By contrast, the SC said that two initial issues concerning the meaning of trust deeds were justiciable, and, because of this, further issues which did raise religious issues had to be determined by the courts.

The wider interest of the case is its tackling of this tricky concept of non-justiciability.

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Lack of legal aid stalls contact hearing

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Q v Q [2014] EWFC 7 (21 May 2014) – read judgment

The President of the Family Division has adjourned contact proceedings by an unrepresented father pending the Ministry of Justice or any other responsible body to come up with the solution to the problem of one parent suffering an injustice due to the withdrawal of legal aid.

This was an application by the father, a convicted sex offender who spoke hardly, “if any” English, for contact with his son under the 1989 Children Act. When it transpired that the second of his offences had been committed during the currency of these proceedings legal aid was withdrawn.  As a consequence there was no funding either for the court attendance of the experts opining as to the father’s unsuitability, or for an interpreter enabling him to challenge their evidence.  Continue reading

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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Drug-dealer passenger gets Euro-damages for car crash

weed_2929857bDelaney v. Secretary of State for Transport, Jay J, 3 June 2014 – read judgment 

Many readers may be wondering how it comes about that a drug-dealer is entitled to compensation against Her Majesty’s Government in circumstances where he was injured during the course of a criminal joint enterprise. The understandable reaction might be: there must be some rule of public policy, reflecting public revulsion, which bars such a claim. The short answer is that there is not.

Well put by the judge. Because as well as being the innocent victim of bad driving, the Claimant happened to have 240g of cannabis on him, and the negligent driver was found to have a smaller quantity. We are back in the familiar territory of ascertaining and applying a rule of law designed to compensate the injured without letting any free-floating moral disapproval get in the way of deciding what that law is. If, by contrast, you feel like a good dose of outrage, just click here for a link to a certain tabloid well-versed in all that.

The problem for the Secretary of State for Transport was, as the judge found, European Law required victims to be compensated in the circumstances, even if the driver’s insurance did not cover the claim. And there was no warrant for a domestic rule preventing such liabilities being paid by the Motor Insurers Bureau (MIB) or insurers whose job it was to provide compensation in accordance with European law.The judge therefore awarded Francovich damages (see below) against the UK for its breach in not conforming to EU law.

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Disabled applicant not entitled under Article 8 to specific care needs

1bf7130a-fcfMcDonald v United Kingdom [2014] ECHR 942 (20 May 2014) – read judgment

The Strasbourg Court has ruled that local authorities are within their margin of discretion to balance individuals’ personal interests against the more general interest of the competent public authority in carrying out their social responsibility of provision of care to the community at large.

Background

The applicant, who suffered from an incapacitating stroke in 1999, required assistance with all transfers and mobilisation. Disabled persons have an individual right to certain services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970, and under the 1990 National Health Services and Care Act  to require an assessment of needs from their local authority. Continue reading

Human rights reform… Labour reveals its hand

SadiqKhan460

Sadiq Khan, Labour’s shadow Justice Secretary, has given us a glimpse of what the Human Rights Act would look like under a future Labour government in a Telegraph article. Labour will “shift power back to British courts”, says the former solicitor.
The article presents a strong case for human rights as an “ancient British tradition” and ties future reforms in with the 800th anniversary of Magna Carta. But the only real proposal here is publishing ‘guidance’ to judges in order to

make sure it is clear to the judges what Parliament intended by Section 2 – that they’re free to disagree with Strasbourg, that it’s sometimes healthy to do so, and that they should feel confident in their judgments based on Britain’s expertise and strong human rights standing.

Section 2 of the Human Rights Act says that any judge deciding a question involving human rights “must take into account“, amongst other things, any judgment of the European Court of Human Rights. This has been a controversial provision as on its face it only requires judges to pay attention to, not follow, Strasbourg’s judgments. But the judiciary have often gone further than they a required to - see Rosalind English’s summary of the recent public spat between the judges.
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Richard III: fairness and public interest litigation

King_Richard_III__1666500aThe Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others [2014] EWHC 1662 (QB) 23 May 2014 – read judgment

Some 527 years after his death, Richard III’s skeleton was found beneath a car park in Leicester. The Plantagenet Alliance, a campaigning organisation representing a group of collateral descendants, sought judicial review of the decision taken by the Secretary of State to exhume and re-inter the monarch in Leicester Cathedral without consulting them and a wide audience.

The case had become a bit of a stalking horse for Lord Chancellor Grayling’s plans to reform judicial review: see my post here. Grayling may have backed off for the moment from his specific plans to reform standing rules, though he still has it in for campaigning bodies participating in judicial reviews. As we will see, counsel for MoJ had a go at saying that the Alliance had no standing, but to no avail.

But MoJ had better points, and was successful overall. And this is the moral of the story. You cannot sensibly justify the bringing of entirely meritless judicial review. But it is wrong to seek to defeat a meritorious claim by relying on standing points, without considering the public interest of the underlying case. As I pointed out in my post, the irony of the cases chosen by MoJ last year to make its case that the standing rules were all very awful were ones where government had been behaving unlawfully.

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