Monthly News Archives: May 2018

The Round Up: An anonymity injunction, the role of assurances in extraditions, and when a person’s refugee status can end.

8 May 2018 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

Credit: The Guardian

In the News:

In the matter of the person previously known as Jon Venables, Application by Ralph Stephen Bulger and James Patrick Bulger: Sir James Munby, sitting in the High Court, rejected a legal challenge to release the new identity of one of James Bulger’s killers.

Dame Elizabeth Butler-Sloss issued an injunction in 2001 conferring lifelong anonymity on Bulger’s killers. A number of Bulger’s relatives subsequently issued an application seeking to vary the injunction, though Bulger’s mother was not a party to it.

The application was considered by Edis J earlier this year, who made an order that it be considered by the President of the Family Division at the first available opportunity. The application requested that the court “consider that over 17 years on and with serious offending the experiment of ‘anonymising’ Jon Venables has not worked”. The application was made in light of child sex offences committed by Venables since 2001.

However, the bundle prepared for the hearing by the applicants did not comply with the relevant Practice Direction’s mandatory requirements. In particular, the applicants did not outline how the injunction should be varied or discharged. Compliance, the court held, was important to achieve the aims of bringing down waiting times and delays in hearing cases. Sir James Munby expressed regret that the Practice Direction was still not being adhered to 18 years after it was first issued. Secondly, a witness statement did not comply with Family Procedure Rule 25.4(2). If the applicants wished to reply on expert evidence, they should have made an application to do so. The court recognised that the application had been prepared in haste but noted that deficiencies remained three months later.

In light of this, counsel for Mr Venables and the Attorney General were severely disadvantaged in their understanding of the case. An order was therefore made to remedy the deficiencies in the relatives’ application.
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Privacy Rights: How should a court remedy legislative incompatibility with EU law?

8 May 2018 by Charlotte Gilmartin

R (The National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department & Anor [2018] EWHC 975 (Admin) (27 April 2018)

In the first phase of Liberty’s landmark challenge to the Investigatory Powers Act 2016 (“IPA”), Singh LJ and Holgate J sitting as a Divisional Court have granted a declaration that in the area of criminal justice, Part 4 of the Investigatory Powers Act 2016 is, in part, incompatible with EU law. Other parts of Liberty’s challenge to the IPA will be considered at a later date.

Part 4 was declared incompatible in so far as it (a) authorises the issue of retention notices for the purpose of investigating crime that is not “serious crime”, and (b) provides for access to retained data that is not subject to prior review by a court or an independent administrative body.

By way of remedy, the court has allowed the Government and Parliament a “reasonable amount of time” to correct the defects which exist and which are incompatible with EU law. This period will expire on 1 November 2018. However, the court decided not to disapply the legislation.

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Claimant held in contempt of court for grossly exaggerating negligence claim

3 May 2018 by Rosalind English

Calderdale Huddersfield NHS Foundation Trust v Sandip Singh Atwal [2018] EWHC 961 (QB) — read judgment

In a landmark case an NHS trust has successfully brought contempt proceedings against a DJ who grossly exaggerated the effect of his injuries in an attempt to claim over £800,000 in damages for clinical negligence. He faces a potential jail sentence.

Background

In June 2008 Sandip Singh Atwal attended the A&E department of Huddersfield Royal Infirmary with injuries to his hands and lip sustained after being attacked with a baseball bat. In 2011 Mr Atwal sued Calderdale and Huddersfield NHS Foundation trust for negligence, alleging a failure to treat his injuries appropriately. The trust admitted liability, offering Mr Atwal £30,000 to settle the case. Mr Atwal did not accept the offer and in 2014 made a claim for £837,109. The claim including substantial sums for future loss of earnings and care, on the basis that he was unable to work and was grossly incapacitated as a result of his injuries.

The trust were suspicious of Mr Atwal’s claimed disabilities, which were out of all proportion to his injuries and were inconsistent with entries in his contemporaneous medical records. In 2015 they commissioned covert video surveillance of Mr Atwal and investigated his social media postings. The footage showed him working as a courier, lifting heavy items without visible signs of discomfort and dancing in a music video for a single he had released. This led the trust to plead fraudulent exaggeration and to seek to strike out the whole of the special damages claim as an abuse of process. In 2016, shortly before the assessment of damages hearing, Mr Atwal accepted the trust’s offer of £30,000. However the whole £30,000 in compensation was swallowed up in paying the trust’s costs. In fact, Mr Atwal owed a further £5,000 to the trust after eight years of litigation.

Contempt Proceedings

In November 2016 the trust made an application to bring committal proceedings against Mr Atwal for contempt of court, claiming that he had pursued a fraudulent claim for damages for clinical negligence by grossly exaggerating the continuing effect of his injuries. It alleged two forms of contempt:

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Coroner defeated over controversial ‘cab-rank’ burial policy

1 May 2018 by Shaheen Rahman

Shaheen Rahman QC is a barrister at One Crown Office Row

R ((1) Adath Yisroel Buriel Society (2) Ita Cymerman) v HM Senior Coroner For Inner North London (Defendant) & Chief Coroner of England & Wales (Interested Party)  [2018] EWHC 969 (Admin)

The Divisional Court has ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs.  The policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).

The policy at the heart of this highly publicised battle between the coroner and faith groups has drawn criticism from across the political spectrum.  It is to the effect that

No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officer’s or coroners.

It has resulted in a blanket refusal of requests for expedition in circumstances where a religion stipulates that burial must take place within a short period of death. Such requests have arisen in cases where the family is waiting for the coroner to decide whether a post mortem examination is required.

 
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