The High Court orders a fresh inquest, dismisses a discrimination claim, and quashes a police officer’s compensation– the Round Up

18 March 2019 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

In the News:

The Independent Inquiry into Child Sexual Abuse (IICSA) heard evidence about Sir Cyril Smith, the former MP for Rochdale. It has been alleged that Sir Cyril Smith abused boys in the 1960s at a school and hotel. The allegations were investigated by the police, but no further action taken.

Lord Steel, the former Liberal leader, gave evidence to the Inquiry. He explained that an article in Private Eye caused him to approach Cyril Smith about the allegations. Lord Steel said that, following this conversation, he “assumed” the allegations were true.

Lord Steel explained he had decided not to act because the accusations were “nothing to do with me”. He “saw no reason to go back to something that happened during his time in Rochdale” and the events happened “before he was even a member of the Liberal Party or an MP”.

Lord Steel’s comments sparked anger and he has been suspended from his party. He has since stated that the matter was properly an issue for the police and the council, and that he was not in a position to re-open the investigation.

In Other News….

• The Bar Council has called for the Mental Capacity Act 2005 Code to be updated. In response to a Ministry of Justice consultation on updating the Code, the Bar Council warned that the Code fails to cover issues such as human rights, covert medication and social care. This is despite recent case law indicating that covert medication can interfere with Article 8 ECHR. The Bar Council also recommended a separate chapter on Human Rights, addressing the UN Convention on the Rights of Persons with Disabilities. (The Local Government Lawyer reports here).
• The special adviser to the Women and Equalities Select Committee has described the Law Society as demonstrating poor ethical leadership in relation to non-disclosure agreements (NDAs). Professor Richard Moorhead, Professor of Law and Professional Ethics at University College London, said that the Law Society’s Guidance on NDAs indicated precisely why the legal profession cannot be allowed to regulate itself. Professor Moorhead praised the Solicitor Regulation Authority but described the Bar Standard Board’s decision not to issue guidance as ‘strange’. The Committee recently heard evidence on NDAs, in which Professor Moorhead suggested some lawyers may have inadvertently perverted the course of justice by drafting clauses which discourage individuals from speaking to regulators and the police. (More from Legal Futures here).
• Theresa May’s Brexit deal was voted down again. Geoffrey Cox, the Attorney-General, published advice which said the legal risk of the UK being tied to the EU remained “unchanged”. MPs also passed a non-binding motion ruling out a no-deal Brexit in all circumstances, and another stating that Brexit be delayed. The Prime Minister has since suggested she would put her plan before Parliament for a third time this week. The Chancellor, however, said on Sunday that there would be no new vote without the support of DUP or Conservative colleagues. Jeremy Corbyn, the Labour leader, has written to MPs and invited them to cross-party talks. (More from the BBC here).

In the Courts:

• Chidlow, R (On the Application Of) v HM Senior Coroner for Blackpool and Fylde: The High Court found a coroner had erred in law. The judicial review arose from an inquest into the death of Mr Bibby, who fell ill in July 2009. An ambulance was called but the NHS Trust was late in its response. During the delay, Mr Bibby suffered a cardiac arrest and died. The High Court ruled that the jury should have been directed to consider a possible causal link between the delay and the death. This was because the jury had heard evidence that, on the balance of probabilities, Mr Bibby would have survived if paramedics had attended before the cardiac arrest. This evidence was based on Mr Bibby’s own circumstances, rather than being a purely abstract, statistical analysis. Furthermore, the coroner was wrong to conclude that the absence of a clear cause of death prevented the jury from being able to consider the possible causal effect of the NHS Trust’s delay. The High Court ordered that a fresh inquest be held.
• Goloshvili, R (On the Application Of) v Secretary of State for the Home Department: The claim concerned the lawfulness of the Defendant’s decision to issue a “Notice of Letting to a Disqualified Person” (“NLDP”). An NLDP is a letter informing a landlord that a person living in their property is disqualified from renting. The High Court refused to rule on the claim because the decision had been withdrawn, making it academic. The claimant had not proved that there was a public interest in hearing the case, because evidence had not been presented that there are a large number of similar cases awaiting the outcome of the claim. Despite this, the court did offer obiter views on the dispute. It found that there was direct discrimination, because the applicant was being treated less favourably based on her nationality. However, it suggested the discrimination is lawful because it is expressly authorised by statute. Claim dismissed.
• Chief Constable of Avon And Somerset Constabulary v Police Medical Appeal Board: The High Court allowed a judicial review of the Police Medical Appeal Board (“the Board”). The Board had decided Mr Middleton was entitled to an award for being injured during the course of duty. The court held that the Board had misdirected itself on the applicable legal principles. Contrary to the Board’s finding, it is not sufficient that the officer is “on duty”. In order for an award to be made, there must be a substantial causal connection between the injury and the execution of duty. Any subsequent failings of management to identify an appropriate role for Mr Middleton were irrelevant. The High Court also held that the Board’s decision was unclear and contradictory on its own terms. However, the court would not substitute its own decision for the Board’s because more than one conclusion could properly be reached on the evidence.

On the UKHRB

• Michael Spencer has written an article about KV (Sri Lanka) v Secretary of State for the Home Department, in which the Supreme Court gave guidance on the use of medical evidence in asylum cases.
• Rajkiran Barhey covered Justyna Zeromska-Smith v United Lincolnshire Hospitals NHS Trust, where the High Court refused to grant an anonymity order to a lady bringing a clinical negligence claim.
• Rosalind English interviewed Frances Gibb, who recently retired from her position as Legal Editor of The Times.

Events:

• Human Rights Knowledges: A Pluralist and Legal Realist View, 21^st March at the LSE. More information here.
• The Knowledge of Human Rights, 22^nd March at De Morgan House. More information here.
• How criminal procedure thinks about international human rights, 27^th March at the British Academy. More information here.
• Britain Outside The EU: The State of Play, 2^nd April 2019 at City, University of London. More information here.

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