10 cases that defined 2018

20 December 2018 by

Jonathan Metzer is the commissioning editor of the UK Human Rights Blog. He is a barrister at One Crown Office Row.

And so we come to the end of another whirlwind year.

It has gone by with worryingly rapid speed. As I write this it is hard to remember that scorching hot summer, with a Royal Wedding in bright sunshine and the England team surpassing all expectations at the World Cup. But as well as a number of major geopolitical events (including Brexit, which I promise not to mention for the rest of this article), this year also saw the unveiling of astonishing artwork at the Roman ruins of Pompeii, the reintroduction of the Chequered Skipper butterfly to Rockingham Forest, the first time that a robot addressed a Parliamentary meeting, and the demise of the Charles Darwin £10 note.

But what happened in the courts? Oh what an adventure it has been, dear reader. Strap on your seat belts and join me as we take a whistle-stop tour through 10 of the biggest legal battles of the last year.

1.Human rights and the police: the victims of John Worboys

Commissioner of Police of the Metropolis v DSD and Anor [2018] UKSC 11

On 21st February the Supreme Court gave judgment on whether the police owed human rights damages to two victims of John Worboys, the London black cab driver who committed a vast number of sexual offences against women between 2003 and 2008.

The victims claimed that failures by the police to undertake a proper investigation had exposed them to inhuman and degrading treatment, in breach of the state’s duties under the Human Rights Act. The court upheld the claim, concluding that the “obvious” shortcomings by the police did constitute a breach of the duty under Article 3 ECHR. This is an example of the state being accountable in human rights even where the unlawful acts were committed by a private citizen (sometimes known as “horizontal effect”).

As well as the main article covering the case here, we also published an in-depth look at the fascinating divergence between the judges here.

The decision to release John Worboys from prison was also quashed in a separate decision, as discussed here.

2. Negligence and the police: an innocent bystander

Robinson v Chief Constable of the West Yorkshire Police [2018] UKSC 4

That same month, the Supreme Court also decided a claim brought by a 76 year old woman who was knocked down by three men as she walked through the centre of Huddersfield. The men were a suspected drug dealer and two police officers struggling to arrest him. As the suspect resisted – trying to do what Johnny Cash and the Clash could not – he fell into the appellant, knocking her to the ground. As a result, she suffered significant injuries.

The Supreme Court had held back in 2015 that the circumstances in which the police would owe a duty of care in negligence were closely circumscribed. But in this case the judges found that because the police had created a reasonably foreseeable danger to the innocent bystander, they did owe a duty of care and damages were awarded.

The Blog covered this case here.

3. The abortion ban in Northern Ireland

In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27

This year, the Supreme Court was also asked to decide whether the ban on abortion in Northern Ireland was compatible with the right to private and family life under Article 8 ECHR.

In what some have said was a surprising move, the court dismissed the appeal because it had been brought by the Northern Ireland Human Rights Commission, which (by a 4-3 majority) was found not to have standing to bring the proceedings. The majority considered that there was no actual or potential victim of the abortion ban in this case.

Nevertheless, a differently constituted majority then went on to say that if they had decided the merits, they would have found that the general prohibition on abortion in Northern Irish law was incompatible with Article 8, as it prohibits abortion in cases of rape, incest and fatal foetal abnormality.

The judges each had idiosyncratic views on this case. Our article here is well-worth a read for anyone who would like to understand its many aspects in more detail.

4. Family members of EU citizens

C‑89/17 Banger v United Kingdom [2018]

This next case is a decision by the Court of Justice of the European Union on some quite complicated issues. Because a British national is not exercising free movement rights simply by living in the UK, they do not have a treaty right to bring over a non-EEA national to live with them. However, if the couple have resided together in an EEA country and then wish to come to the UK, then (provided certain requirements are met) this will constitute the exercise of free movement and the non-EEA partner will have the right to come here with their partner. This is called the “Surinder Singh” route after the first person to use it. Who says lawyers can’t do magic?

In this case, the CJEU held that the Surinder Singh route has to be available not only to married but also to unmarried partners of British citizens. The court also examined whether such a family member denied EEA residency in the UK must be given a right of appeal against the refusal, sending this issue back to the domestic courts to be decided here in line with its guidance. The test cases on that issue remain ongoing.

What will this case will mean post-Brexit? Like many things to do with the “B” word, it remains unclear…

The Blog covered the right of appeal aspect of this here and also here with articles by your most devoted commissioning editor. To learn more about the Surinder Singh aspect of the case, this article by Free Movement is recommended.

5. The right to die: the ongoing battle

R (Conway) v Secretary of State for Justice [2018] EWCA Civ 1431

Cases concerning the right to die continue to be fought right the way to the highest courts. In this case, the Court of Appeal upheld the blanket ban on assisted suicide in the Suicide Act 1961, finding that it was a necessary and proportionate interference with the right to private life under Article 8, rejecting a proposed alternative system suggested by the claimant to permit assisted suicide with judicial safeguards.

The Supreme Court then refused permission to appeal, stating that this was a political issue for Parliament to decide.

We covered the decision on the Blog here.

6. The Mau Mau claims

Kimathi & Others v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB) 

How do we confront the troubling legacy of British imperial rule around the globe? And how important is the passage of time when it comes to doing justice?

The High Court had to grapple with these issues when faced with a test case for claims by over 40,000 Kenyans seeking damages against the Foreign & Commonwealth Office for alleged abuse during the Kenyan Emergency of the 1950s and early 1960s.

In a mammoth judgment, the court held that the claims should not proceed because the long gap between the events and the present day meant that the evidence had deteriorated so much that it would not be possible to have a fair trial.

We covered the case (in which members of 1 COR were involved) on the Blog here.

7. The ‘sins of the parents’

KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53

“The son shall not suffer for the iniquity of the father, nor the father suffer for the iniquity of the son. The righteousness of the righteous shall be upon himself, and the wickedness of the wicked shall be upon himself.” – Ezekiel 18:19-20

When considering whether children without immigration status should be expected to leave the UK even if it may be in their best interests to remain, should the immigration tribunal weigh against them any criminality or misconduct by their parents?

It looked like the answer was “yes”, until the Supreme Court said otherwise this October. Rather, the tribunal must undertake an assessment that is focused solely on the child to decide whether their removal (and the removal of the parent) is reasonable.

In addition, if the parent has been involved in criminality, then the assessment of whether removal would be unduly harsh should not involve an examination of the level of culpability. Instead, the exercise should be focused on the position of the child in circumstances where they are removed with the parent, or have to remain in the UK without them.

However, this decision also leaves some important questions unanswered. To discover more, I wrote about this decision for the Blog here.

8. Blasphemy in Austria

ES v Austria (2018) (Application no. 38450/12)

In a decision which surprised many, the European Court of Human Rights held that the Austrian government did not violate an individual’s freedom of expression when she was fined for saying at a seminar on Islam that the prophet Mohammed had married one of his wives she was only six and had intercourse with her from the age of nine.

The applicant relied on Article 10, complaining that the domestic court had failed to address the substance of the impugned statements in the light of her right to freedom of expression.  The Strasbourg Court disagreed, finding that the Austrian court had acted within the “margin of appreciation” afforded to states to comply with human rights law. This decision has been widely criticized.

We covered the case on the Blog here.

9. “Gay Cake”: the final chapter

Lee v Ashers Baking Co. Ltd [2018] UKSC 49

In October, the Supreme Court allowed an appeal by a bakery which refused to bake a cake with a message in icing saying “Support Gay Marriage”, finding that it was not direct discrimination on grounds of sexual orientation or political opinion to refuse to bake a message that was contrary to the bakers’ religious beliefs.

The court held that while refusing to provide a service to someone because they are gay would be unlawful discrimination, the objection here was to the message requested on the cake rather than to the identity of the customers. It was held in these circumstances that the bakers were not obliged under equality law to bake the cake.

The Blog covered the Supreme Court decision here. We also covered the original county court decision here, and the Northern Ireland Court of Appeal decision here. In addition, we wrote about the case on a very similar issue which went to the US Supreme Court this year here.

10. Hospital receptionists and the duty of care

Darnley v Croydon Health Services NHS Trust [2018] UKSC 50

And finally, the Supreme Court unanimously allowed the appeal of a claimant who suffered a catastrophic deterioration after leaving A&E without being seen when he had been given incorrect information by the receptionist who told him that he would have to wait 4-5 hours.

The trial judge had found that if the appellant had been told (accurately) that he would be seen within 30 minutes, he would have stayed in hospital. It was held that the receptionist owed a duty of care which was breached by the incorrect advice, and damages were payable.

Our very own Philip Havers QC, interviewed by the Blog here, appeared on behalf of the respondent. We covered the case here.

As well as this article, you can also listen to Emma-Louise Fenelon and I discussing these cases on the LawPod UK Christmas Special podcast here or on iTunes.

As ever, it has been a pleasure editing the Blog over the past year. I wish you all a very happy and restful break. See you in 2019!

Jonathan Metzer

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