Monthly News Archives: April 2018


The Round-Up: Snooper’s Charter, Coroner’s Cab-Rank Ruling, and Foul Play with Freedom of Information

30 April 2018 by

A woman in a room of servers

Image Credit: Guardian

The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor: Liberty’s challenge to Part 4 of the Investigatory Powers Act, on the ground of incompatibility with EU law, was successful. In particular, Liberty challenged the power bestowed on the Secretary of State to issue ‘retention notices’ requiring telecommunications operators to retain communications data for up to 12 months (detail at [22]). This engaged three EU Charter rights: the right to private life, protection of personal data, and freedom of expression and information.

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Liability of private hospitals seminar: two new podcasts

27 April 2018 by

Recently the clinical negligence team at 1 Crown Office Row held a seminar debating the liability of private hospitals and clinics. In “Lessons learned from the Paterson litigation” two talks on the topic were given then a case scenario was presented for the panel to discuss. Making up the claimant’s panel are Elizabeth-Anne Gumbel QC and Robert Kellar. For the defendants are John Whitting QC and Jeremy Hyam QC.  The event was chaired by Dame Christina Lambert.

We have recorded the case scenarios for Law Pod UK which are now available for download: tune in to Episode 30 (part 1) and Episode 31 part 2).

Law Pod UK is available for free download from iTunes, Audioboom and Overcast.

Musicians and hearing loss: New podcast

26 April 2018 by

We posted previously about the case of Goldscheider v Royal Opera House. There was a lot of interesting material in the judgment, not all of it to do with the law, so we decided to invite a musician on to Law Pod UK to explore the player’s perspective. Tune in to Episode 29 to hear Rosalind English in discussion with opera singer and composer Susie Self about the realities of orchestral placement, ear defenders, hearing loss and the hazards faced by musicians on the performing stage.

 

Law Pod UK is available for free download from iTunes, Audioboom and Overcast.

 

Legal personhood for non-human animals? The case of the Non-Human Rights Project — Dr Linda Roland Danil

26 April 2018 by

This guest article argues that it is time to consider seriously the case for granting legal personhood to certain classes of sentient animals.elephant.jpg

Introduction

This post is inspired by a larger project I have recently begun investigating – that of granting legal personhood to non-human animals. This guest post will focus on one of a number of cases initiated by the Non-Human Rights Project (NhRP), specifically in relation to the NhRP’s bid to have a number of chimpanzees in captivity relocated to a sanctuary – the case of Matter of Nonhuman Rights Project Inc. v Lavery (2017) (hereinafter ‘Lavery’).

Beginning in December 2013, the NhRP has filed petitions for writs of habeas corpus on behalf of four chimpanzees (as well as, at the time of writing, three elephants) held in captivity – two of the chimpanzees (Tommy and Kiko) are being held by private individuals, and the other two chimpanzees (Hercules and Leo) who were kept, until recently, by Stony Brook University for research into the evolution of human bipedalism. In order for this to be executed, however, the chimpanzees would have to be considered legal persons. It is important to note here that, as the NhRP itself argues, legal personhood is not synonymous with ‘human being’ – as most prominently exemplified by the fact that, for example, corporations have legal personhood. One of the aims of the NhRP is‘[…] change the common law status of great apes, elephants, dolphins, and whales from mere “things,” which lack the capacity to possess any legal right, to “legal persons,” who possess such fundamental rights as bodily liberty and bodily integrity.’ The NhRP is beginning with great apes, elephants, dolphins, and whales because they are members of species for whom there is considerable and robust scientific evidence of self-awareness and autonomy.

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Headline- Round Up: Sir Cliff Richard’s case against the BBC reaches the High Court

23 April 2018 by

Conor Monighan brings us the latest updates in human rights law

cliff

Credit: The Guardian

In the News:

The legal battle between Sir Cliff Richard and the BBC has begun in the High Court.

In August 2014, police raided Sir Cliff’s home based on an allegation of historic child sexual abuse. The BBC broadcast live footage of the raid filmed from a helicopter. The singer was interviewed under caution, but never charged.

Sir Cliff alleges that the BBC’s coverage of the police raid on his home was a serious invasion of his right to privacy, for which there was no lawful justification. He also alleges breaches of his data protection rights. The singer seeks substantial general damages, plus £278,000 for legal costs, over £108,000 for PR fees which he spent in order to rebuild his reputation, and an undisclosed sum relating to the cancellation of his autobiography’s publication. He began giving evidence on the first day of the hearing.
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Igniting the Green Revolution: some brain storming from environmental lawyers

21 April 2018 by

Image may contain: 3 people

Image Credit: Tobias Schreiner, PIEL UK

On Friday 6th April, Public Interest Environmental Law (PIEL) UK hosted their 12th annual conference. The student-led association, which was founded in 2007, is inspired by the US conference of the same name which has attracted ever-growing numbers of delegates since it began in 1983.

This year’s conference boasted three panels packed with academics and practitioners, and a keynote address from Richard Macrory CBE. In light of the movement’s snowballing strength, it seemed apposite that this year’s conference be themed ‘Environmental Litigation: Has the Green Revolution Reached the Courts?’

In fact, speakers ranged beyond this brief, partly due to recognising that it would take the coalescence of strategic litigation with procedural reform and public interest to truly ignite the ‘green revolution.’

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Salvation outside the church? CJEU rules on religious discrimination in employment — Dr Ronan McCrea

20 April 2018 by

CJEU

The Court of Justice of the European Union has issued its first major ruling on the reconciliation of the autonomy rights of religious organisations with the right of employees (or potential employees) of such organisations to be free of discrimination.


Background


In 2012 Vera Egenberger applied for a fixed term post advertised by the Evangelisches Werk für Diakonie und Entwicklung, which is a body associated with the Evangelische Kirche in Deutschland (a German Protestant church). The post advertised sought a person who could prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had significant experience in this area and applied for the post. However, there was a problem. Ms. Egenberger is a person who does not have a religious faith and the relevant advert included the following statement:


‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’



Ms. Egenberger was not called for interview. She took a case in the German courts alleging discrimination on grounds of religion.


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When does rehabilitation create a ‘right to be forgotten’?

20 April 2018 by

google magnifying glass.pngIn NT1 and NT2 v Google LLC, Mr Justice Warby considered whether Google should be required to ‘de-list’ links in its search results to articles about the spent historic convictions of two businessmen under what is commonly called the ‘right to be forgotten’. He held it was in the case of one claimant, but not the other.

The claimants argued that the Google search results conveyed inaccurate information about their offending. Further, they sought orders requiring details about their offending and their convictions and sentences to be removed from Google Search results, on the basis that such information was out of date; irrelevant; of no public interest; and/or otherwise an illegitimate interference with their rights. They also sought compensation for Google in continuing to return search results disclosing such details, after the claimants’ complaints were made. Google resisted both claims, maintaining that the inclusion of such details in its search results was legitimate.

Mr Justice Warby summarised the issues as “the first question is whether the record needs correcting; the second question is whether the data protection or privacy rights of these claimants extend to having shameful episodes in their personal history eliminated from Google Search; thirdly, there is the question of whether damages should be paid.”

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Can we build AI that doesn’t turn on us? Is it already too late?

18 April 2018 by

A report from the UK House of Lords Select Committee on Artificial Intelligence has made a number of recommendations for the UK’s approach to the rise of algorithms. The report ‘AI in the UK: ready, willing and able?’ suggests the creation of a cross-sector AI Code to help mitigate the risks of AI outstripping human intelligence.

The main recommendation in the report is that  autonomous power to hurt, destroy or deceive human beings should never be vested in artificial intelligence. The committee calls for the Law Commission to clarify existing liability law and considers whether it will be sufficient when AI systems malfunction or cause harm to users. The authors predict a situation where it is possible to foresee a scenario where AI systems may

malfunction, underperform or otherwise make erroneous decisions which cause harm. In particular, this might happen when an algorithm learns and evolves of its own accord.

The authors of the report confess that it was “not clear” to them or their witnesses whether “new mechanisms for legal liability and redress in such situations are required, or whether existing mechanisms are sufficient”.  Their proposals, for securing some sort of prospective safety, echo Isaac Asimov’s three laws for robotics.

  1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
  2. A robot must obey orders given it by human beings except where such orders would conflict with the First Law.
  3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

But these elaborations of principle may turn out to be merely semantic.  The safety regime is not just a question of a few governments  and tech companies agreeing on various principles. This is a global problem – and indeed even if Google were to get together with all the other giants in this field, Alibaba, Alphabet, Amazon, Apple, Facebook, Microsoft and Tencent, it may not be able to anticipate the consequences of building machines that can self-improve. 
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The Round-Up: The Right to Be Forgotten

16 April 2018 by

The judge rejected a similar claim brought by a second businessman.

Image Credit: Guardian.

NT 1 & NT 2 v Google LLC: A businessman has succeeded in a landmark ‘right to be forgotten’ action against Google, resulting in an order for the de-listing of search results relating to his spent conviction. Warby J heard the cases of two anonymous businessmen (NT1 and NT2), both with spent convictions, and upheld the latter’s claim. Each made further claims of misuse of private information: again, NT2’s claim was found to succeed.

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Round Up- Do trained lawyers have a human right to represent themselves in court?

9 April 2018 by

Conor Monighan brings us the latest updates in human rights law

The High Court, Court of Appeal and Supreme Court are not sitting at present (Easter Term will begin on Tuesday 10th April). Accordingly, this week’s Round Up focuses largely on the ECHR.

European-court-of-human-r-009

Credit: The Guardian

Correia De Matos v. Portugal

This week, the ECHR held that requiring defendants to have legal representation does not violate Article 6. The vote was split by nine votes to eight.

The applicant, a lawyer by training, alleged a violation of Article 6 s.3(c) of the Convention. This was on the basis of a decision by Portuguese domestic courts which (i) refused him leave to conduct his own defence in criminal proceedings against him, and (ii) required that he be represented by a lawyer.
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Worboys’ release quashed — Jake Richards

3 April 2018 by

taxiOn 28th March 2018 a three-judge panel of the Divisional Court gave its decision in R (DSD and Ors) v The Parole Board of England and Wales [2018] EWHC 694 (Admin), ruling that the Parole Board’s decision to direct the release of John Worboys (the ‘black cab rapist’) should be quashed.

 

Background

On 21st April 2009, John Worboys (now under the name of John Radford) was convicted of 19 serious sexual offences, including rape and sexual assault, which were committed on victims aged between 19 and 33 between October 2006 and February 2008. He was given an indeterminate sentence for public protection – specifying a minimum term of imprisonment of 8 years after which Worboys would be eligible for release if the Parole Board was satisfied that it was no longer necessary for the protection of the public for him to be held in prison.

On 26th December 2017, the Parole Board determined that incarceration was no longer necessary and directed for Worboys to be released. After much public outcry, the decision was challenged by the Mayor of London, two victims and, on a discrete aspect of the decision, a media group.

A decision to release a prisoner by the Parole Board had never been the subject of judicial review before. This is because the only parties to a hearing before the Parole Board are the Secretary of State for Justice, the Parole Board themselves and the prisoner. The proceedings are held entirely in private. To that extent, unless the Secretary of State for Justice intervened to seek judicial review of a decision by another government body, the decision was effectively unchallengeable.

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The Round-Up: Worboys Ruling Strikes a Blow to Parole Board Privacy, Criminal Bar to Strike over Legal Aid Cuts, and Did Vote Leave Breach Election Law?

2 April 2018 by

John Worboys is escorted in handcuffs into the royal courts of justice.

Image Credit: Guardian

R (On the application of) DSD and NBV & Ors v The Parole Board of England and Wales & Ors & John Radford: in a landmark ruling, the High Court has quashed the Parole Board’s decision to release black cab driver and serial sex offender John Worboys, on grounds of irrationality. The Board acted irrationally in that it “should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability” [201].

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Violist wins against Royal Opera House for hearing loss

2 April 2018 by

Goldscheider v The Royal Opera House [2018] EWHC 687 (QB) – read judgment

The ROH has been found liable for failing to protect the hearing of its musicians and for causing acoustic shock to former viola player Chris Goldscheider. This is the first time a musical institution has been found responsible for damage to the hearing of musicians, and the first time that acoustic shock as been recognised as an injury sounding in damages. As the Media release on the judgement observed,

The decision leaves insurers for the ROH responsible for a £750,000 compensation claim, and legal costs in addition, an urgent need to re-think its policies and procedures, a possible re-design of “The Pit”, and probably claims against them by other musicians.

But the issues in this judgment were limited to breach of duty and causation of the claimant’s injury, with damages to be assessed later.

Mr Goldscheider said he had sustained acoustic shock during the course of his employment at the ROH on Saturday 1 September 2012 when the orchestra was in the pit rehearsing Wagner’s ‘Die Walküre’. As a result of the way that the conductor arranged the orchestra, the Claimant was positioned immediately in front of a group of about 18 to 20 brass players. 
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