Schindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs  EWHC 957, Divisional Court 28 April 2016 – read judgment
An interesting, albeit unsuccessful, challenge to the rule which prohibits expatriates who were last registered to vote in the UK more than 15 years ago from voting in the forthcoming referendum on EU membership.
Mr Schindler (now 95) has lived in Italy since 1982, but has remained throughout a UK citizen. So is Ms MacLennan, who has worked in Brussels as an EU lawyer since 1987. Neither has dual nationality. They said that the 15 year rule is an unjustified restriction of the rights of freedom of movement under EU law. They pointed to the fact that if the UK leaves the EU, they would end up without rights of abode in their current countries, and thus they had a particular interest in the outcome of the referendum.
Aranyosi and Căldăraru [C-404/15 and C-659/15 PPU].
On 5 April 2016, the Court of Justice of the European Union (CJEU) ruled that the execution of a European Arrest Warrant (‘EAW’) must be deferred if there is a real risk of inhuman or degrading treatment because of the conditions of detention for the person concerned in the requesting state. If the existence of that risk cannot be discounted within a reasonable period, the authority responsible for the execution of the warrant must decide whether the surrender procedure should be deferred or brought to an end.
The cases concerned two totally unrelated and separate extradition requests: a Hungarian accusation warrant seeking the person for trial, the other a Romanian conviction warrant so the person sought could serve a prison sentence. The requested state in both cases was Germany. Continue reading
In the matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015) v The Applicant and Associated Newspapers Ltd and others  EWCOP21 – read judgment
The Court of Protection has just ruled that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death.
I posted last year on the case of a woman who had suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment (King’s College Hospital NHS Foundation Trust v C and another  EWCOP 80). Continue reading
Spencer v Anderson (Paternity Testing)  EWHC 851 (Fam) – read judgment
A fascinating case in the Family Division throws up a number of facts that some may find surprising. One is that this is the first time the courts in this country have been asked to direct post-mortem scientific testing to establish paternity. The other is that DNA is not covered by the Human Tissue Act, because genetic material does not contain human cells. One might wonder why the statute doesn’t, given that DNA is the instruction manual that makes the human tissue that it covers – but maybe updating the 2004 law to cover genetic material would create more difficulties than it was designed to resolve.
The facts can be briefly stated. The applicant had been made aware of his possible relationship to S, who had died of bowel cancer some years before. When S had presented with the disease, it turned out that there was a family history of such cancer. The hospital treating him therefore took a blood sample and extracted DNA from it to test for high-risk genes. If the applicant was the son of the deceased he would have a 50% risk of inherited predisposition to bowel cancer. This risk would be mitigated by biannual colonoscopies. Continue reading
PJS v. News Group Newspapers Ltd  EWCA Civ 393 – read judgment
Matthew Flinn posted here recently on an earlier decision in this case, PJS (22 January 2016), in which the Court of Appeal granted an interim injunction banning revelation of PJS’s extra-marital ventures.
Yesterday’s judgment sets that injunction aside, solely on the basis that those escapades had now been so widely reported on the internet and in a US publication that it was less likely that PJS would get an injunction at any future trial of the claim.
This decision was reported in a somewhat partial way in today’s Times – “the death knell for celebrity privacy injunctions”. Things are not quite as simple as that. The injunction was only discharged because of the wide publication ground which the story had now received, not on the underlying merits of the privacy claims. But then The Times (proprietor NGN) was not necessarily going to give us a fully objective account of a case in which the Sun on Sunday (proprietor NGN) had secured this win.
Photo credit: Guardian
“ After this there is no turning back. You take the blue pill: the story ends, you wake up in your bed and believe whatever you want to believe. You take the red pill: you stay in Wonderland and I show you how deep the rabbit hole goes.”
– Morpheus, The Matrix
The explosion of genetic testing in the last half century has produced unquantifiable benefits, allowing scientists to understand the constitution of genetic disorders and dramatically improve disease diagnosis, avoidance and treatment. Consider the near-eradication of Tay-Sachs, a fatal neurodegenerative disease, since the introduction of screening in the 1970s; the standardisation of newborn testing; and the introduction of BRCA1 and BRCA2 testing for inherited cancer genes.
These advances have created challenging ethical and legal questions, however: How much information does each of us want to know about our genetic makeup?; Do we have a responsibility to seek such information out? What should we do with the information once we get it? What about the significant risks of stigmatisation and discrimination?; And, where do doctors’ duties begin and end insofar as they are, or ought to be aware of testing outcomes?
In the High Court last week (judgment available here) McKenna J dealt with the latter question, striking out a claim by a patient’s relatives over a missed diagnosis of a genetic disorder and holding that a third party cannot recover damages for a personal injury suffered because of an omission in the treatment of another. Continue reading
In the News
Last week marked the beginning of the ten-week run-in to the EU referendum. With it came the Government’s obligation to publish a statutory report informing the electorate of precisely what rights and obligations arise for the UK as a result of EU membership – and this report appeared on Thursday. Continue reading