The Weekly Round up: cakes, emergency services and legal advice all in the limelight

14 October 2018 by


Baking takes up supreme court time on both sides of the Atlantic, the United Nations High Commissioner for Refugees makes an appearance in the Court of Appeal, Unexplained Wealth Orders make an entrance and more…

The biggest news of the week arguably came out of Northern Ireland. However, mercifully this blog can ignore the ongoing speculation regarding a Brexit settlement, the attitude of DUP MPs, the potential presence of border infrastructure and whether or not veterinary inspections and customs checks are of loose equivalence (well, at least for now…).

Much more interesting than any of the above, the Supreme Court this week gave judgement in the Northern Irish case of Lee v Ashers Baking Company Ltd. Lee had attempted to purchase a cake from Ashers, a small family run bakery, decorated with a message in support of gay marriage. The bakery declined to supply such a cake, arguing that to do so would be inconsistent with their strongly held religious beliefs and offensive to God. The case thus pitched the baker’s rights to freedom of religion and freedom of expression under articles 9 and 10 of the European Convention on Human Rights against those of Mr Lee to not be discriminated against as enshrined in equalities legislation. Lee had previously won his case at the court of first instance in Belfast and in the Court of Appeal.

In a unanimous decision, the Supreme Court overturned the decision of the Court of Appeal. Finding that the refusal to supply the cake was based on the message only rather than being a case of associative discrimination, the court held there was no discrimination against Mr Lee on the grounds of his sexual orientation. It was open to the owners of the bakery to refuse to provide a service to customers based on their deeply held views where that refusal related to the customer’s request rather than the customer’s characteristics.

Interestingly, the judgement in Lee made reference to an American Supreme Court decision (Postscript at Para 59). In Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission a baker had refused to make a cake for a homosexual individual’s wedding arguing that to do so would itself constitute an expressive statement of support and thus infringe his rights to freedom of speech and free exercise of religion under the first amendment. The Commission decided that this constituted unlawful discrimination. The Supreme Court ruled against the Commission on the basis that it had not employed religious neutrality, violating Masterpiece owner Jack Phillips’ rights to free exercise of religion. Liberal justices Ginsburg and Sotomayor, in dissent, drew a clear distinction between an objection to the message on the cake and an objection to the customer who ordered it. The UK court considered this distinction of principle importance, but the decision in Washington clearly demonstrates the difficulties the law here may encounter as it evolves following Lee.

In other news…

  • The Supreme Court has overturned a ruling by the Court of Appeal that an NHS hospital trust was not liable for the misstatements of its non-medical staff. In Darnley v Croydon Health Services [2018] UKSC 50 the appellant, who had suffered serious brain damage after an assault, claimed that the misleading information given to him by an A&E receptionist about waiting times led to his decision to leave the hospital, thus suffering a catastrophic collapse from which he would have recovered had he been in a hospital setting. This ruling will have important implications for emergency services; read Owain QC’s analysis of the Supreme Court’s decision here.  Law Pod UK will shortly release a podcast discussion of this case with Owain.
  • The court dismissed an appeal against a deportation order despite intervention from the United Nations High Commissioner for Refugees in AS (Guinea) v Secretaryof State for the Home Department. The appellant, supported by the UNHCR, argued that to be considered stateless he had only to establish a reasonable degree of likelihood or a real risk that he was stateless, not prove it on the balance of probabilities. In addition, the appellant contended that statelessness amounted to an exceptional circumstance for the purposes of the Immigration Rules. Both were dismissed. The court held that statelessness, unlike refugee status, could be relatively safely determined by appropriate applications to the country concerned. Having failed on the first ground, it was unnecessary to consider the second.
  • Claims against Suffolk police and a local hospital were dismissed in Griffiths & Ors v Suffolk Police & Anor [2018] EWHC 2538 (QB). A woman was killed by a friend who had been disappointed in his hopes for a romantic relationship after he was seen by mental health services and the Police contacted regarding his threatening behaviour. The claimants alleged that the hospital failed to perform adequate assessments under the Mental Health Act 2009 and were under a duty to warn either the Police or the victim of the risk he posed. In addition, they alleged the Police failed to respond adequately to threats made by the individual to the victim. Her daughter’s claims under the Fatal Accidents Act 1976, s8 of the Human Rights Act 1998 and in common law negligence against both the police force and hospital were rejected in a lengthy judgement containing a detailed analysis of precedent cases against the police.
  • The decision of the Employment Appeal Tribunal in X v Y Ltd cast doubt on the definition of effecting iniquity in relation to legal advice privilege. Legal advice privilege has long facilitated open discourse between clients and advisors and could be relied upon unless such advice was deemed to effect iniquity. The definition of iniquity had long been considered a high bar, usually constituting advice on how to commit fraud, dishonest or criminal conduct. However, the EAT held this could extend to advice on how to cloak a potentially discriminatory dismissal. Given that much of employment litigation involves allegations of unfair, discriminatory or whistleblowing activity, the ability of lawyers to give advice in the knowledge they can rely on legal privilege has now been called into question (read more here).
  • After the expiry of an anonymity order, it was revealed that Zamira Hajiyeva, the wife of the former chairman of the state-controlled International Bank of Azerbaijan, Jahangir Hajiyev, has become the first person to be issued with a new unexplained wealth order (National Crime Agency v Hajiyeva (Rev 1) [2018] EWHC 2534 (Admin)). After reigning his post in 2015, Mr Hajiyev was sentenced to 15 years in jail for fraud, embezzlement and misappropriation of public funds by an Azerbaijani court. On October 3rd, Supperstone J rejected her submissions that the grounds to affect such an order had not been met. Unless Mrs Hajiyeva can provide a statement explaining how she obtained her property in the UK, the Criminal Finances Act 2017 now gives law enforcement agencies the powers to recover the proceeds of crime, including money laundering.

Lastly, a new book by Helen Duffy, Professor of International Humanitarian and Human Rights Law at the University of Leiden, sheds a new light on the growing but relatively under-explored field of strategic human rights litigation. The book describes five detailed case studies drawn from the author’s own experience and explores the strategic commencement of litigation to help advance human rights. With reference to genocide in Guatemala, slavery in Niger, forced disappearance in Argentina, torture and detention in the ‘war on terror’ and Palestinian land rights, the book considers how more effective litigation strategies may be developed in the future.


Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals 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 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: