Monthly News Archives: September 2011

What is a life worth living? Further analysis of “M” – Daniel Sokol

30 September 2011 by

W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) and others [2011] EWHC 2443 (Fam). Read judgment.

In the first case of its kind, the Court of Protection ruled that withdrawing artificial nutrition and hydration from a person in a minimally conscious state was not, in the circumstances, in that person’s best interests. The Court also made general observations for future cases.

See our earlier posts here and here for a summary of the facts of this case.

The judgment

Since M had left no legally valid advance decision expressing her wishes to forego life-sustaining treatment, the court had to determine whether it would be in M’s best interests to withdraw artificial nutrition and hydration (ANH).
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No right to die without a “Living will”

30 September 2011 by

We posted earlier on the Court of Protection’s refusal to declare that doctors could lawfully discontinue and withhold all life-sustaining treatment from a patient in a minimally conscious state (MCS) – “just above” a vegetative state (VS), which itself is slightly higher than a coma – read judgment.

The message underlying this ruling  is clear: if you want to avoid the risk of spending years of your life subject to aggressive medical intervention whilst imprisoned in a cage of bare-consciousness, make a living will. The Mental Capacity Act is remorseless, and courts will no longer come to the aid of those of us optimistic enough to think “it will never happen”.

We do not tend to think specifically about ending up in state of total dependency on medical support and therefore there is very little  likelihood of any significant section of the population making a formal advance decision in accordance with the Act. On the other hand, how many of us have said, as patient M said in this case, that if such a situation were to arise, we would want to “go quickly”? [para 230]

Such generalities however are to no effect. Despite the universal human instinct to live in denial of contingent disasters,  the court refused to give due weight to M’s previously expressed wish not to live a life dependent on others, because those these statements were not “specifically directed” at the consequences of withdrawing artificial nutrition and hydration (ANH) when conscious. Baker J could not consider those statements as a clear indication some eight years on from the onset of her illness, of what M would now want to happen.

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Court refuses family’s “right to die”

29 September 2011 by

M and others v NHS Primary Healthcare Trust – read judgment

For the first time the courts have been asked to consider whether life-supporting treatment should be withdrawn from a patient who was not in a persistent vegetative state (PVS) but was minimally conscious. The patient’s family sought a declaration for the withdrawal of artificial nutrition and hydration withdrawn and said the woman, referred to as M in court, would not want to live “a life dependent on others”.
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Detention of mentally ill foreign national violated Convention rights

29 September 2011 by

R (on the application of S) v Secretary of State for the Home Department [2011] EWHC 2120 (Admin) – read judgment

The High Court has found that the Secretary of State unlawfully detained a mentally ill foreign national who was awaiting deportation.  By failing to notify the claimant of the deportation order in good time or to follow the Home Office’s own published policies on the detention of mentally ill persons, and by detaining the claimant in degrading conditions, the Secretary of State had breached Article 3 (prohibition of inhuman and degrading treatment) and Article 5 (right to liberty and security of person) of the Convention.
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Strict liability for offence of under-age sex does not offend presumption of innocence

28 September 2011 by

C v United Kingdom Application no. 37334/08 – read judgment

The Strasbourg Court has rejected as manifestly ill-founded a complaint that the offence of strict liability for rape of a child under 13 violated the right to a presumption if innocence under Article 6 and respect for private life under Article 8.

This admissibility decision touches a sensitive nerve in the relationship between Strasbourg and national authorities by exploring the extent to which the Convention rights should influence prosecutorial policy.  Section 5 of the 2003 Sexual Offences Act creates an offence of strict liability, which means that penile penetration of a child under the age of 13 is an offence whether or not the victim gave consent and irrespective of the belief of the perpetrator regarding the victim’s age. This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence;  even if a child under 13 is fully capable of understanding and freely agreeing to such sexual activity, the law says that it makes no difference. He or she is legally disabled from consenting. Although absence of consent is not an ingredient of the offence, presence of consent is, material in relation to sentence which under Section 5 of the 2003 Act can range from absolute discharge to life imprisonment.
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When is family life family life? A look at deportation cases – Lourdes Peroni

27 September 2011 by

In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own [also see Rosalind English’s post].

In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution:  this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases?

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The suits in Strasbourg – Yukos Oil, tax evasion and human rights

27 September 2011 by

Oao  Neftyanay Kopaniya Yukos v Russia (Application no. 14902/04) – read judgment 

The collapse of the Russian oil giant Yukos following enforcement proceedings for multi-billion tax evasion has not prevented the ghost of the now-defunct company appearing in Strasbourg as a “victim” of the Convention.  After majority shareholder Mikhail Khodorkovsky  was prosecuted and imprisoned for fraud, the assets of Yukos were seized and the company was declared insolvent in 2006, and liquidated a  year later.  Nevertheless, the Strasbourg Court accepted its application because the issues raised by the case “transcended the person and the interests” of the applicant company. Striking out such claims, said the Court,

would undermine the very essence of the right of individual applications by legal persons, as it would encourage governments to deprive such entities of the possibility to pursue an application lodged at a time when they enjoyed legal personality…

The case raises interesting questions with regard to the policing and punishment of tax evasion, a matter which Strasbourg generally prefers to leave to national authorities. Whilst the wide margin of appreciation generally granted to a national governments cannot be boundless, there glimmers behind this ruling a reflection of  troubled water between the Council of Europe and its largest constituent. By admitting and upholding some of the complaints, Strasbourg signals its readiness to castigate failures in due process. But the rejection of the more fundamental charge of political motivation, though not exactly an olive branch, is proffered at least as a sign of non-aggression.
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Don’t throw the BAILII out with the bath water

26 September 2011 by

The Guardian published an editorial today arguing that court judgments should be opened up to the public. The editorial challenges the fact that BAILII, the charity which currently publishes most judgments online, is not searchable on Google.

Broadly speaking, it is good to see The Guardian taking up this somewhat esoteric but important topic. As I have argued on a number of occasions (see e.g. Making Law Accessible to the Public) the Ministry of Justice needs to do more to make “raw” law, that is judgments and legislation, accessible online. But it is important to focus on the right issues.

Case law should, ideally, be searchable on Google. BAILII explains the reason for not making it so:

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Application of EU Rights Charter – Advocate General’s Opinion

26 September 2011 by

Updated |NS v Secretary of State for the Home Department (Principles of Community law) [2011] EUECJ C-493/10 (22 September 2011) – read opinion

The Common European Asylum System was designed to establish a fair and effective distribution of the burden on the asylum systems of the EU Member States. Regulation No 343/2003 was passed in order to introduce a clear and workable method for determining which single Member State is responsible for determining any given asylum application lodged within the European Union. The measure was also intended to prevent forum shopping by asylum seekers. 

Where a third-country national has applied for asylum in a Member State which is not primarily responsible for examining that application under the Regulation, it provides for mechanisms for the transfer of the asylum seeker to the Member State which is primarily responsible.
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Misrepresenting the law on squatting

26 September 2011 by

Today, an open letter from 158 lawyers and academics has been published in The Guardian claiming that the law on squatting, on which the Government has proposed reforms, has been misrepresented by politicians and the media.

I am one of the letter’s signatories. Amongst other things, it states that:

a significant number of recent media reports have stated that squatters who refuse to leave someone’s home are not committing a criminal offence and that a change in the law – such as that proposed by the government – is needed to rectify this situation.

The accompanying article is here. One interesting aspect of this campaign is that it was organised in part by one of the longest standing and best legal blogs, Nearly Legal. Nearly Legal have used social media, which an ever increasing number of lawyers follow, to gather many of the signatures. Their response is here and some of their previous posts on the topic here and here.

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Do ask, do tell – The Human Rights Roundup

26 September 2011 by

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

by Melinda Padron

Reiterating the last roundup’s call, if you know an individual, campaign group or NGO which deserves to have its local or national human rights work recognised, nominations for The Liberty Human Rights Award close on 30th September 2011, so there’s still time to get nominating!

In the news

Dale farm evictions

Last week residents at the UK’s largest illegal travellers’ site, at Dale Farm in Essex, won a court injunction delaying their planned eviction. A High Court decision on an injunction halting the eviction of residents from the UK’s largest illegal travellers’ site will take place today.

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Your honey with a dash of GM pollen: EU Court rules

22 September 2011 by

Case C‑442/09 Bablok et al v. Freistaat Bayern, Monsanto intervening

The result of this decision by the CJEU is summed up in a pithy summary by EU Business entitled “EU court backs angry honeymaker in GM pollen row.” The underlying question arose when food law met honey law (yes, there is one) met GMO licensing law, It was all about whether adventitious contamination of honey and pollen deriving from GMO maize renders the honey a GMO product.

Paradoxically the beekeeper sought that outcome in what we would call statutory tort proceedings. He sued the State of Bavaria who owned various experimental GM maize plots, for damaging his honey via GM pollen. Monsanto, the real object of the case, said that it didn’t matter really that its GMO pollen was in the pollen, and it didn’t cause damage for which our apiarist could sue. As we shall see, the CJEU decided it did matter – a lot.

Not all of you will know that EU legislators have dedicated a whole Directive to honey; of Council Directive 2001/110/EC. In the lyrical yet precise prose of the Eurocrat: ‘Honey is the natural sweet substance produced by Apis mellifera bees from the nectar of plants or from secretions of living parts of plants or excretions of plant‑sucking insects on the living parts of plants, which the bees collect, transform by combining with specific substances of their own, deposit, dehydrate, store and leave in honeycombs to ripen and mature.’ : Annex I. Honey consists predominantly of sugars but also contains solid particles derived from honey collection, as Annex II tells us.

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Rape conviction carries little weight against right to family life, rules Strasbourg

21 September 2011 by

 A.A. v. THE UNITED KINGDOM – 8000/08 [2011] ECHR 1345 – Read judgment

The Strasbourg Court has ruled unlawful the deportation of a Nigerian man convicted of rape. Considering the facts of his case afresh, the Court came to the conclusion that the 24 year old student’s right to family life would be violated if he were removed to Nigeria. 

The applicant arrived in the United Kingdom in 2000 at the age of 13 join his mother. At the age of 15, he was convicted of rape. After serving less than two years of his four-year sentence he was released on licence in 2004.  The Home Office served him with a notice of liability to a deportation order on account of the rape conviction. Although the Immigration Judge of the Asylum and Immigration Tribunal (“the AIT”) allowed the applicant’s appeal, the Secretary of State’s appeal against this finding ultimately prevailed since it was found that the various factors in respect of his family life and his good conduct in remand did not outweigh the presumption in favour of deportation in accordance with the current version of the Immigration Rules.
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Liberty recruiting human rights advice line volunteers

21 September 2011 by

Liberty, the human rights advocacy organisation, is currently recruiting for trainees, pupils, solicitors and barristers to volunteer on its evening Advice Line.

The Advice Line runs on Mondays and Thursday 6:30pm – 8:30pm and gives advice to members of the public on human rights and civil liberties (members of the public can call on 0845 123 2307 or 020 3145 0461).

For further information contact Laura Milne ( I volunteered at the Advice Line for a year during my pupillage (training) and it was a great experience. It is a perfect way to learn more about human rights law, meet lawyers of all levels of seniority and help people with interesting problems for whom Liberty is usually the last resort. You will also get to see Liberty’s flash new offices!

Lord Justice Wall lays down law on family court privacy

20 September 2011 by

Doncaster Metropolitan Borough Council v Watson [2011] EWHC 2376 (Fam) (01 September 2011) – Read judgment

Sir Nicholas Wall, the President of the Family Division, has suspended a nine-month prison sentence for contempt of court given to Elizabeth Watson, a “private investigator” who published online sex abuse allegations which had been rejected by a series of judges.

The case has involved many of the foot soldiers in a bitter and public battle between the family law system and campaigners who say it is corrupt and not fit for purpose. Recognised this, Lord Justice wall used the opportunity to “dispel a number of myths”. First,

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