Monthly News Archives: September 2012


Can an individual claim ownership of “life’s instructions” – a human gene?

20 September 2012 by

Yes, says the US Court of Appeals for the Federal Circuit, upholding the validity of human gene patents related to breast and ovarian cancer (Association for Molecular Pathology and others v the Patent Office and Myriad Genetics – read judgment) UPDATED

The three judge panel ruled in a 2-1 decision that the biotechnology company Myriad was entitled to its patents on the molecules because each of them represented “a non-naturally occurring composition of matter”. The court also upheld Myriad’s patent on a technique for identifying potential cancer therapies by monitoring effects on cell growth, but denied their claim on assessing cancer risk by comparing DNA sequences because the method is based on “abstract, mental steps” of logic that are not “transformative”.

This fascinating judgment is a model of clarity and fluency in this difficult area. But what does this intellectual property tussle have to do with human rights? Well, there is nothing unfamiliar to human rights lawyers in litigation over the availability of life-saving treatment  (patient B, the Herceptin case and the antiretroviral litigation in South Africa are three examples that spring to mind). And much of it begins in the laboratory, with the critical allocation of exclusivity rights.
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A Chagossian double bill: an environmental information contest, and a touch of Wikileaks

20 September 2012 by

The Chagos Refugees Group in Mauritius v. Foreign and Commonwealth Office, First Tier Tribunal, 4 September 2012, read judgment

and Bancoult v. FCO, 25 July 2012, Stanley Burnton LJ, read judgment

The manoevres by which the Chagossians were evicted from their islands in the Indian Ocean, the late 1960s and early 1970s, so to enable the US to operate an air base on Diego Garcia, do not show the UK Foreign Office in its best light. Indeed, after a severe rebuke from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.

The first of these new cases is an environmental information appeal concerning the next phase of the story – how the FCO decided that it was not feasible to resettle the islanders in 2002-2004.

This decision was taken in the modern way – backed by a feasibility study prepared by consultants supporting the stance which the FCO ultimately were to take. And this case concerns the islanders’ attempts to get documents lying behind and around the taking of this decision.

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Free speech and prosecution in the age of Twitter

20 September 2012 by

The Crown Prosecution Service (CPS) has decided not to charge Daniel Thomas for posting a homophobic message on Twitter, the social networking site, about the swimmer Tom Daley. The press release, which takes the form of an extended quote from the Director of Public Prosecutions, is fascinating. I have reproduced it in full below.

In short, the CPS has decided not to charge Thomas as he “intended the message to be humorous”, removed it quickly,  didn’t intend it to go beyond his followers (“however naive” that was), has expressed remorse and Daley did not find out about the message until after it had been reported in the media.

The DPP has also used the opportunity to announce that he is drafting new guidance for social media prosecutions and also to say that whilst “serious wrongdoing” could be the subject of prosecutions,

The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken. In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media.

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More on admissibility, the view from the Court – Paul Harvey and Pamela McCormick

19 September 2012 by

Rosalind English’s excellent posts here and here provide a clear overview of the Court’s case law on and its approach to the admissibility criteria. As approximately 97 % of all UK applications to the Court are currently found to be inadmissible or are struck out (see the Court’s 2011 statistics and Andrew Tickell’s earlier post, it is important for applicants and especially practitioners to have a clear understanding of the admissibility criteria before lodging their applications. 

However, as the vast majority of inadmissible applications are declared inadmissible by a single judge in decisions which are never published, there is little information in the public domain about how these criteria are applied in practice.

Consequently, we would like to take this opportunity to supplement Rosalind’s overview by providing practitioners with some practical information on the application of the criteria to UK cases as well as other guidelines for submitting applications.

The Court’s general approach to admissibility

Many practitioners still incorrectly assume that for all applications there is an initial, “admissibility” stage of proceedings and a later “merits” stage. Instead, it is more helpful to distinguish between: (i) the procedure before an application is communicated to the respondent Government for their observations; and (ii) the procedure after communication. 
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Will the Bill of Rights Commission achieve anything at all? – Alice Donald

19 September 2012 by

It’ll all be over by Christmas: that’s what the coalition promised when it established the Commission on a Bill of Rights to, among other things:

… investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties.

With less than four months to go, it seems a good time to reflect upon its work. My premise is that the process by which a bill of rights is created is as important as the outcome if the bill is to enjoy longevity and democratic legitimacy, in the sense of having been subject to inclusive and informed public deliberation. This lesson has been learned in contexts from Northern Ireland to Australia, where energetic consultation processes were designed using community organising techniques, televised hearings, the internet, social networking and other creative forms of public engagement. These are explored in research I conducted for the Equality and Human Rights Commission ahead of the 2010 general election.


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Dignity, Death and Deprivation of Liberty: Human Rights in the Court of Protection

19 September 2012 by

What: Dignity, Death and Deprivation of Liberty: Human Rights in the Court of Protection 

When: 6pm on Wednesday 10th October 2012 

You are invited to join 1 Crown Office Row for an event to mark the 5th Anniversary of the Court of Protection.  This Seminar will focus on current key topics in the Court of Protection being debated by two teams of Counsel from 1 Crown Office Row before an interventionist Panel comprising Philip Havers QC, Professor Anthony Grayling and Richard Stein, solicitor at Leigh Day & Co solicitors.

There are still a few places remaining to attend this event. If you are currently a legal practitioner and would like to attend please contact Charlotte Barrow, Marketing Executive at One Crown Office Row on charlotte.barrow@1cor.com stating your name and organisation. Places will be allocated on a first-come-first-served basis.

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The UK and Strasbourg: a victim fantasy

19 September 2012 by

Brought to you by Andrew Tickell

Rhubarb, rhubarb. Another defeat for the United Kingdom in Strasbourg yesterday. In James, Wells and Lee v. the United Kingdom, a chamber of the Court’s Fourth Section held that indeterminate sentences of imprisonment for public protection infringed Article 5 of the Convention.  At his first Justice Questions in the House of Commons yesterday, our fresh-minted Conservative Lord Chancellor and Justice Secretary, Chris Grayling, advised MPs that:

“I’m very disappointed with the ECHR decision this morning.  I have to say, it is not an area where I welcome the Court, seeking to make rulings.  It is something we intend to appeal.”

One wonders which areas Mr Grayling would welcome the Court’s jurisdiction, but all in all, a somewhat tepid response from a man whose appointment was greeted by the Daily Mail with the enthusiastic suggestion that Grayling…

“… unlike his predecessor Ken Clarke, will have no truck with the cardboard judges at the European Court of Human Rights.”

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Strasbourg applications: some aspects of the “six months” rule

18 September 2012 by

Another brief guide to the admissibility conditions to the Strasbourg Court. This one is on the “six months rule” laid down in paragraph 1 of Article 35.

The Court may only deal with the matter … within a period of six months from the date on which the final decision was taken.

Easy enough to state; the difficulty lies in identifying the “final decision”, in other words the point at which the six months starts to run. Here are the broad guidelines to be identified from the case law (and for this I am indebted to Karen Reid’s excellent and detailed Practitioner’s Guide (Third Edition 2008 Sweet & Maxwell).

1. No waiver

It is worth mentioning at the outset that the six month rule is imposed irrespective of the wishes of the parties or court; the rule cannot be waived (X v France (1982):

The Contracting States cannot, on their own authority, put aside the rule of compliance with the six-months time limit. The deposit bv a State of a declaration made under Article 25[now 35] of the Convention does not affect the running of this delay
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How do you “exhaust local remedies” for the purpose of applying to Strasbourg?

17 September 2012 by

Following David Hart’s guide to taking a human rights point in local and regional courts, here is an attempt to explain what is meant by the requirement set out in Article 35 of the Convention, that any petitioner before the court has to “exhaust” their local remedies before their complaint will be considered.

The rule of exhaustion of local remedies started as an international law principle relating to diplomatic protection.  The idea was that a measure of respect should be accorded to the respondent state and its legal rules. In human rights law, the rule of local remedies is based on the principle that states should be primary enforcers of Convention rights.  But very soon after the Convention went into operation,  certain limitations grew up around the rule as a result of the consideration of the interests of the individual. It was felt that unlike diplomatic procedures, the application of the rule should conform to fairness and not cause the individual undue hardship in securing a reasonably quick resolution in Strasbourg.  In effect, petitioners are not prevented from bringing cases straight to the Strasbourg Court without first going through the national authorities, it is simply that if they do so, it is open to the respondent state to assert inadmissibility based on non-exhaustion. In practice this means that when the respondent state is formally informed of the petition and requested to submit observations, it must satisfy the court that remedies have been available and sufficient at the relevant time. Once this is established the burden passes to the petitioner to prove that local remedies have been exhausted.

Of course if the government fails to assert non-exhaustion under Article 35 prior to the Court’s decision on admissibility the matter will proceed to an examination on the merits by default; the government is effectively estopped by its own delay from protesting the point.
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Hillsborough, a new president and mental health discrimination – The Human Rights Roundup

16 September 2012 by

Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. 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 Wessen Jazrawi

In the news
A bumper edition this week. The European Court of Human Rights elected a new president and the Government finally apologised for the Hillsborough disaster. Its report on Hillsborough was published this week and provides illuminating reading. In other news, the DPP has published guidelines on the approach prosecutors should take when assessing the public interest in cases affecting the media and the UKBA has published guidance for caseworkers following the Alvi judgment. Finally, questions are asked about Chris Grayling’s qualifications for his new role of Lord Chancellor.

Human Rights Tour

First, the British Institute of Human Rights is bringing the 2012 Human Rights Tour to a city near you soon: see here for further detail on the programme, dates and venues.


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Can morality be explained by science? Do human rights = echr1(hra − 1) + echr2(hra − 2)

14 September 2012 by

As scientists gather more and more information about the very large and the very small, where will they stop? Put another way, if ethics and religion can’t deliver, do we look to science for an answer?

The novelist Ian McEwan has no hesitation in incorporating the latest discoveries in physics and neuroscience in the messy psychological drama that constitutes a novel; in his latest bestseller  he investigates the possibility of embedding a mathematical problem within an ethical one which drives along the story within the story. And last week the Guardian hosted a debate between physicist Lawrence Krauss and Julian Baggini on whether science can provide better answers to the big questions of morality than any of the canons of philosophy; now we have a report from the USA in which a Georgia Tech professor has hypothesized lethal weapons systems that are ethically superior to human soldiers on the battlefield (by substituting for the unreliable human hairbreadth trigger robots that are programmed to comply with international rules of war).

 Military technology aside, the essential question asks for a bit of out of the box thinking. If we can identify specific biological answers to why we make certain decisions and judgments, then we can look to science as a basis for moral decisions, which are after all only sensible  if they are based on reason, which is itself based on empirical evidence. In Lawrence Krauss’ view, ultimately
 our understanding of neurobiology and evolutionary biology and psychology will reduce our understanding of morality to some well-defined biological constructs.
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Mere faults in prison investigation does not breach Article 3 rules Court of Appeal

14 September 2012 by

R (NM) Secretary v of State for Justice [2012] EWCA Civ 1182 – read judgment

The Court of Appeal has ruled that a prison had conducted an adequate investigation into a sexual assault on a prisoner with learning disabilities and this complied with the prison’s investigative obligation under Article 3  of the European Convention on Human Rights. See our post on the decision below here for the background facts.

Briefly, instead of a formal investigation, the matter was investigated by prison officers under the prison’s violence reduction strategy. The other prisoner (F) admitted assaulting the appellant. But the Secretary of State refused a PSO 1300 formal investigation, asserting that a sufficient investigation had taken place. Judicial review of this refusal was dismissed, although the judge noted that the appellant’s disability had been overlooked as the investigating officers were unaware of it and that the prison’s disability policy should have led to the appointment of an appropriate adult for him. Nevertheless HHJ Mackie QC concluded that the investigation had been reasonable and did not breach Article 3 or PSO 1300.

In this appeal it was submitted that the judge erred in concluding that the prison’s investigation complied with Article 3.
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The troubling case of Rachel Corrie

12 September 2012 by

Almost ten years after the death of Rachel Corrie on 16 March 2003, her case still raises troubling questions. How was a 23-year-old protester killed by an Israeli military bulldozer? Did the driver do it deliberately, as the family have claimed? Were the Israel Defence Forces (IDF) responsible in some other way?

Those questions were all in play in a civil negligence claim brought against the Israeli state by Corrie’s family, who claimed $1 in damages. Having exhausted other avenues, the family were looking for answers, not a pay out. The Haifa District Court examined the issues over 15 days of oral testimony, and two weeks ago Judge Oded Gershon released a 73-page ruling (Hebrew) as well as a detailed summary of the Judgment (English).

I was particularly interested in the judgment as a significant proportion of my work recently has involved public inquiries into allegations against the British Armed Forces over events which happened in Iraq in 2003/4. Unfortunately, the reporting of the ruling has been fairly poor. The Guardian published eight articles and a cartoon about the ruling (by comparison, the appointment of a new Justice Secretary generated four). But despite the sheer volume of commentary, I had no sense from reading the articles that the writers had attended the oral hearings, read the judgment (which is long and in Hebrew) or even consider the court’s English summary. The Guardian’s legal section is very good so it is disappointing that the legal interest of the story was largely ignored.

With this in mind, I thought I would post a summary of the judgment and brief discussion of how an equivalent claim would work in the UK.

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Is the UK listening to the European Court of Human Rights?

12 September 2012 by

The Ministry of Justice has published its annual report to the Joint Committee on Human Rights on the Government response to human rights judgments 2011–12. By signing up to the European Convention on Human Rights, the UK has committed to “abide by” judgments of the court. This commitment is monitored by the Council of Europe’s Committee of Ministers.

The report presents a snapshot of the current state of play in relation to the European Court of Human Rights, makes for very interesting reading (trust me!). Here are some tidbits:

  • There were 28 judgments involving the UK from 1 August 2011 to 31 July 2012, nine of which the UK lost (UK loses 3 out of 4 cases, anyone?). See the handy table at pages 12-13.
  • The UK currently has 24 cases before the Committee of Ministers, which means that  they have not been implemented.
  • The UK paid out €454,457  [this originally and wrongly said £] in damages for human rights violations (known as ‘just satisfaction’) in 2011, compared to €371,160 in 2010 (p.58). Fear of this figure ending up in the Daily Mail may be the reason that it is on the last page.

A new president, a blog and a talk

11 September 2012 by

Three quick, unrelated things.

First, the European Court of Human Rights elected a new President yesterday to replace Sir Nicolas Bratza. Dean Spielman (pictured), from Luxembourg, was elected by secret ballot and will succeed Sir Nicolas on 1 November 2012. He is only 49 so unlike the outspoken Bratza he will not be forced to retire before the end of his 3-year tenure (Bratza is now 67 and served for just under a year). Judge Spielman’s C.V. is here (point of interest: he studied at Cambridge). The Court’s press release here.

Secondly, there is a new human rights blog in town, the New Zealand Human Rights Blog. It looks good, and from the initial posts appears to be taking an interest in UK human rights law too.

Thirdly, the Criminal Bar Association and Law Reform Committee of the Bar Council are putting on an interesting debate next Thursday 20 September, 6-8pm: ‘Protecting free speech: A public interest defence for the media?’. All details are here – you will need to download the form in order to book. The event costs £10 in advance or £15 on the door.

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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