Monthly News Archives: January 2019


A draft domestic abuse bill Domestic abuse in 2019 – David Burrows

31 January 2019 by

Domestic abuse is endemic in UK society. The law’s response has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (rarely used), and uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order). Each is governed by a different set of procedural rules; and different means of enforcement. Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.

Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson[1978] UKHL 1, [1979] AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said:

I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnsonremains important: it provides the continuing House of Lords definition of the stare decisisrule.)


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Bangalore Principles on the Domestic Application of International Human Rights Norms

31 January 2019 by

Conference Report by Anthony Wenton

The evolution of international human rights law (IHRL) in the UN era has seen a paradigm shift away from a view of international law as applying solely to states and their relations with other states, to a focus on the rights of individuals and the duties states owe to citizens. As articulated in the Universal Declaration of Human Rights, certain rights are so fundamental as to be universal in scope based on our common humanity. As Reisman notes‘no serious scholar still supports the contention that internal human rights are “essentially within the domestic jurisdiction of any state” and hence insulated from international law.’

The question is how these inalienable rights, expressed so forcefully on the international level, can be transposed into domestic law. One way is through the process of judicial interpretation. However, this poses a challenge in dualist systems where, traditionally, courts do not take international law into account, unless implemented by national legislation. This reluctance to engage with unincorporated IHRL is what the 1988 Bangalore Judicial Colloquium—a group including such luminaries as Michael Kirby, Ruth Bader Ginsburg, Anthony Lester and P.N. Bhagwati—sought to address. The resulting Bangalore Principles, concluded that:

It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes—whether or not they have been incorporated into domestic law—for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.


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Court awards damages to cover commercial surrogacy

31 January 2019 by

If, as a cause of the negligence of the Defendant, a Claimant is unable to have children of her own, should the cost of commercial surrogacy from California be recoverable in damages? This was the issue before the Court of Appeal recently in XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832

The Claimant (“Ms X”) was diagnosed as suffering from cervical cancer aged 29. The Defendant accepted that it had been negligent in failing to diagnose the Claimant much earlier, when she was aged 25. The Defendant had carried out defective smear tests and failed to diagnose the cancer from biopsies performed. As a result of the delay, Ms X required chemo-radiotherapy treatment, which in turn led to infertility, as well as other severe consequences (i.e. premature menopause, problems with bladder and bowels). Ms X had a strong desire to have a family and bring up four children.


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Privacy and the peace protestor — an extended look

30 January 2019 by

Dominic Ruck Keene is a barrister at One Crown Office Row.

The European Court of Human Rights has held in Catt v The United Kingdom (43514/15))  that that the retention by UK police of information on the Domestic Extremism Database about a 90 year-old activist’s presence at political protests was a breach of his Article 8 ECHR rights. The ruling follows the Supreme Court’s contrasting judgment that such gathering and retention had been lawful and a proportionate interference with Mr Catt’s Article 8 ECHR rights.


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The Round-up: Domestic Violence Consultation and some Strasbourg cases

28 January 2019 by

In the News 

The Home Office has published a domestic violence consultation response and draft bill  as part of a landmark overhaul of domestic abuse laws. Theresa May promised an overhaul almost two years ago, and the bill was a key pledge in the 2017 Queen’s Speech. 

The bill introduces the first statutory definition of domestic abuse, which encompasses financial and emotional abuse as well as coercive and controlling behaviour. It would prohibit perpetrators from cross-examining their victims in court, impose polygraph tests on high-risk offenders as a condition of release, and create new powers to force perpetrators into rehabilitation programmes. Among other new protections for victims, the bill would make domestic abuse complainants automatically eligible for special measures in the criminal courts. It would also establish a new “office of the Domestic Abuse Commissioner” tasked with improving response and support for victims across public services. 

Domestic violence is a major human rights issue which can deprive women of their rights to health and physical and mental integrity, freedom from torture, inhuman and degrading treatment, and the right to life. The bill has been welcomed by some as a significant step towards combatting the issue . However, writing in the Guardian, Julie Bindel criticises the new measure as “impossible to implement” and likely to be “misued by vindictive men” and “misunderstood by those tasked with protecting women”.


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Doctor’s right to be forgotten

27 January 2019 by

ECLI:NL:RBAMS: 2018:8606, Rechtbank Amsterdam, C/13/636885 / HA RK 17-301 – read judgment

An Amsterdam court has ruled that Google should bring down an unofficial “blacklist” of doctors maintained by a discussion group on the internet. This is said to be the first right to be forgotten case involving medical negligence by a doctor.

The judgment – available only in Dutch and heavily redacted – was handed down in July last year. But publication was delayed due to disputes over whether publication would compromise the anonymity not only of the claimant but of the other fifteen doctors on the blacklist. The claimant’s lawyer, reported in The Guardian, predicted that Google will “have to bring down thousands of pages” as a result of this ruling:

There is a medical disciplinary panel but Google has been the judge until now.

Background facts

The claimant was a surgeon who had been suspended by a disciplinary panel because of her postoperative care of a patient. This was changed to a conditional suspension after she appealed and she was allowed to continue practising.


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Closed judgments: security, accountability and court processes

25 January 2019 by

Dr Lawrence McNamara is an academic at the University of York and a Senior Research Fellow at the Bingham Centre for the Rule of Law

A new practice direction reveals some valuable progress in the management of closed judgments, but leaves uncertainty and, very worryingly, indicates that some judgments will be destroyed. 

Closed material procedures (CMPs) have become an established option for the government when it wants to rely on security-sensitive evidence in civil litigation.

In immigration matters in the Special Immigration Appeals Commission (SIAC) and in the full range of civil proceedings under the Justice and Security Act 2013, CMPs permit the state to rely on evidence that will not be disclosed to the other party who may be (for example) subject to deportation or a claimant in an action alleging state complicity in rendition.

Open and closed judgments may be handed down. The latter will not be seen by non-state parties, their lawyers or the public.

In parallel, there have been heavy restrictions on access to and reporting of criminal terrorism cases, most notably Incedal.

CMPs and closed judgments are by nature a departure from fundamental rule of law standards of equality of arms and open justice. The Supreme Court pointed this out in Al Rawi and the Special Advocates have been highly critical of them.  Nonetheless, there is no sign that the CMPs will disappear. Instead, the trend has slowly been towards managing them and finding ways to mitigate some of the deficiencies.

A six-paragraph Practice Direction on Closed Judgments, issued on 14 January 2019, reveals some significant steps in that direction, but it lacks clarity in its scope and reveals a very troubling proposal for destruction of judgments.


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Latest Law Pod UK with Guy Mansfield QC

21 January 2019 by

Law Pod UK logo

The latest episode of Law Pod UK features Guy Mansfield QC, who acted for the government in the Mau Mau action against the UK Foreign and Commonwealth Office. In this group litigation over 40,000 Kenyans alleged abuse during the Kenyan Emergency of the 1950s and early 1960s. The various test cases led to a High Court judgments last year dismissing the claims for being out of time under the Limitation Act 1980. See Jo Moore’s post for the case citations referred to in the podcast, and also the more recent decision in Kimathi & Others [November 2018]

Other limitation cases referred to in the podcast are KR v Bryn Alyn [2003] A v Hoare [2008]  and Jones & Ors v DECC [2012].

Law Pod UK is available for free on Audioboom, iTunes, Spotify, PodBean or wherever you listen to your podcasts.



Round Up: Heated politics, immigration matters, and a win for The Mail Online

21 January 2019 by

Budapest

Photo credit: The Guardian

In his 1748 text ‘The Spirit of the Laws’, Montesquieu proposed his initial concept of what would ultimately become known amongst political scientists as the separation of powers. Mercifully, for both the writer of this blog and the time poor reader, this weekly round-up of events need only concern itself with one of those branches of government…

Despite best efforts however, the topic of European politics is never truly out of the picture. This week saw judgement given in a series of cases by the European Court of Human Rights concerning Article 6 rights in Hungary – Boza and Others, Kurmai and Others, Csontos and Others, Kvacskay and Others, Bartos, Kovács-Csincsák and Komlódi, and Borbély and Others v. Hungary. The EU member state has increasingly been the focus of continent-wide concerns about the rule of law in central Europe, which in particular relate to the policies of Prime Minister Viktor Orban and his Fidesz party. Similar concerns have spread to neighbouring countries including regional heavyweight Poland, where the ruing Law and Justice Party has repeatedly clashed with both Brussels and the country’s judiciary over suggestions that judicial appointments have become politically motivated.
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Recent ruling on Universal Credit

15 January 2019 by

R (Johnson, Woods, Barrett and Stewart) v SSWP CO/1552/2018 (11 January 2019) – read judgment

 

This case was brought by four social security claimants contesting the proper method of calculating the amount of universal credit payable to each claimant under the Universal Credit Regulations 2013. Singh LJ and Lewis J concluded that treating claimants as having “earned” twice as much as they do if they happen to be paid twice within one monthly assessment period is “odd in the extreme” [para 54] and “…. could be said to lead to nonsensical situations” [para 55].

The Legal Proceedings

The four claimants are employees who are paid monthly. As they receive their salaries on or around either the last working day or last banking day of the month, there are times when salaries payable in respect of two months are paid during one assessment period. This means that there were occasions on which the claimants were only allowed to retain a single amount of £192 by way of the work allowance from the combined two months’ salary. The work allowance is the amount of earnings claimants with children or with limited capability for work can keep in full before universal credit is reduced by a proportion (63%) of their earned income under Regulation 22 of the 2013 Regulations. This way of calculating the allowance resulted in fluctuating universal credit awards and “severe cash flow problems” [para 4] for the claimants.
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Law Pod UK Latest: Ruth Bader Ginsberg

14 January 2019 by

At the age of 85, United States Supreme Court Justice Ruth Bader Ginsburg has developed an extraordinary legal legacy while becoming an unexpected pop culture icon. With the documentary ‘RBG’, and the movie ‘On the Basis of Sex’ starring Felicity Jones shortly to go on general release in cinemas, Emma-Louise Fenelon speaks to Mrs Justice Philippa Whipple about her exceptional life and career. Listen to Episode 61 of Law Pod UK.

RBG is Directed by Betsy West and Julie Cohen and co-produced by Storyville Films and CNN Films. Details are available here: https://www.rbgmovie.co.uk.

Law Pod UK is available for free on AudioboomiTunesPodBean, The Podcast App or wherever you get your podcasts.

UK Human Rights Blog & Law Pod UK annual party!

14 January 2019 by

Last Friday the UK Human Rights Blog and Law Pod UK Committee and contributors celebrated a fantastic year at 1 Crown Office Row with Vermouth tasting and prize-giving. We were delighted to be joined by special guests David Prest and Simon Jarvis from Whistledown Productions, as well as former 1COR member, Wendy Outhwaite QC.

After speeches about how both the blog and the podcast have grown from Commissioning Editor Jonathan Metzer and Law Pod UK Presenter Emma-Louise Fenelon, Wendy Outhwaite QC gave out gifts of her sparkling Ambriel wine and John Gimlette’s ‘Elephant Complex‘ to our rounders-up Eleanor Leydon, Conor Monighan and (in absentia) Thomas Hayes. Founder and co-presenter of Law Pod UK Rosalind English was also thanked for all her hard work with both blog and podcast.

Thank you all for coming and looking forward to 2019!

UK Human Rights Blog Law Pod UK Party 2018-19

Round Up: Should short term jail sentences be abolished? Plus rulings on Universal Credit and judicial pensions.

14 January 2019 by

Conor Monighan brings us the latest updates in human rights law

In the News:

prison

Credit: The Guardian

The Government is considering whether to abolish prison sentences lasting six months of less.

Rory Stewart, the Prisons Minister, has argued that short jail terms are only serving to increase crime by mixing minor offenders with hardened criminals. He cited research suggesting that community sentences may help reduce the risk of reoffending when compared to short term prison sentences.

In Scotland there is already a presumption against such sentences. Re-offending has fallen to its lowest level for nearly two decades and the Scottish government are looking to widen the scheme.

The change would impact upon around 30,000 offenders, helping alleviate pressure on the overburdened prison system. Exceptions would be made for offenders who were violent or had committed sexual crimes.

The suggestion has already proven controversial. The Ministry of Justice has emphasised it is only exploring options and no decision has been made.

In Other News….

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Damages for wrongful life refused

10 January 2019 by

ARB v IVF Hammersmith & Another [2018] Civ 2803 (17 December 2018) – read judgment

Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful birth arising from a breach of contract.

The facts of the case are set out in my podcast on the first instance decision (Episode 12 of Law Pod UK). Briefly, an IVF clinic had implanted the claimant father’s gametes into his former partner without his consent. This occurred after the couple had sought fertility treatment at the clinic resulting in the birth of a son some years previously. Following standard practice, the clinic froze five embryos made with their gametes. Subsequently, the couple separated. Some time after this separation the mother, R, attended the clinic without ARB and informed the staff that they had decided to have another child. The form requiring consent from ARB for thawing and implanting the embyro was signed by R, and the clinic failed to notice the forgery. R went on to give birth to a healthy daughter, E, who is now the sibling of ARB’s son. There is a Family Court order confirming parental responsibility and shared residence in respect of both children.
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