Monthly News Archives: May 2020

Juries and Covid-19: protecting the right to a fair trial

7 May 2020 by Sapan Maini-Thompson

This article first appeared on the Justice Gap and the original post may be found here.

With Covid-19 having driven jury-trials to a grinding halt, it is no overstatement to suggest that justice itself has been suspended.

To remedy this situation, the Lord Chief Justice, Lord Burnett, last week told the BBC that it will be necessary to consider “radical measures” to enable jury trials to continue. To satisfy social distancing requirements in courtrooms, he said he would support reducing the number of jurors from twelve to seven. The historical precedent for this proposal is the Administration of Justice (Emergency Provisions) Act 1939 which similarly reduced the size of juries to accommodate for the pressures of national conscription during the Second World War.

Whilst this proposal is compelling on its practical merits, it could pose significant risks to a defendant’s right to a fair trial, with a reduced jury potentially affecting the procedural fairness of a trial.

Remote advocacy: ALBA Guidelines

5 May 2020 by Rosalind English

The Administrative Law Bar Association has just put out a very helpful set of guidelines for conducting hearings by video-link or telephone (“remote hearings”). As we’ve all realised in the past few weeks, these can pose particular challenges for all professions, not least of all advocates. The purpose of ALBA’s guidance is to

assist advocates properly to prepare for, and effectively participate in, such hearings in public law cases which do not involve oral evidence

This post is just a signpost to ALBA’s paper, so we would urge you to click on the link above and save a copy of their guidance to your desktop. They cover issues such as document preparation, preparation of technology, and the etiquette to be observed for the actual presentation. We’re all getting used to the business of muting our microphones when not speaking, but there are other formalities to attend to for a court hearing.

Transgender man correctly registered as “mother” on child’s birth certificate

5 May 2020 by Charlotte Gilmartin

R (McConnell and YY) v Registrar General [2020] EWCA Civ 559

The Court of Appeal has revisited the tension between the wish of a transgender person to have their legal gender recognised on their child’s birth certificate and the right of the child to discover the identity of their biological mother. The Court has ruled that as the person who gave birth to the child, the appellant (a transgender male) must be registered as the “mother” on the child’s birth certificate.

Learning lessons the hard way – Article 2 duties to investigate the Government’s response to the Covid-19 pandemic — Paul Bowen QC

4 May 2020 by Guest Contributor

This article first appeared on the UK Constitutional Law Association blog — the original can be found here.

As we watch the Covid-19 pandemic unfold our attention is naturally on the steps that HM Government (‘HMG’) is taking to mitigate the immediate crisis.  The time is approaching, however, when it will be necessary to evaluate HMG’s preparation for, and response to, the pandemic.  Calls are being made by the TUC and doctors’ groups for a public inquiry into one aspect of its response, namely failures to procure adequate personal protective equipment (‘PPE’) for NHS staff, at least 100 of whom are believed to have died having contracted the virus while treating patients.  HMG is accused of failing to respond to a national exercise in 2016 testing the UK’s resilience to a similar flu pandemic which highlighted an increased need for ventilators.  Other criticisms go further.  This blog argues that the state owes a duty under Article 2 of the European Convention on Human Rights to investigate some deaths caused by Covid-19.  This duty will require not only inquests into individual deaths but also a public inquiry under the Inquiries Act 2005 to address those systemic issues not suitable for determination by an inquest.  The post builds on and responds to posts by Conall Mallory, James Rowbottom and Elizabeth Stubbins Banes.  It also foreshadows the need for reform in this area.

What are the data privacy considerations of Contact Tracing Apps?

1 May 2020 by Rafe Jennings

Latest news: GCHQ has published a detailed blog article which seeks to explain (and defend) the new NHS contact tracing app, which the Government regards as the key to a controlled exit from lockdown.

Coronavirus presents a serious threat to society, legitimising the collection of public health data under Article 9:2 (g) of GDPR regulations, which allows the processing of such data if “necessary for reasons of substantial public interest”. Some of this collection will take the form of contact tracing apps, which have been used in containing the spread of coronavirus in countries such as Singapore. 

They work by broadcasting a bluetooth signal from a smartphone which is picked up by other smartphones (and vice versa), meaning that if one user contracts coronavirus, those who have been in contact with that user can be effectively warned and given further advice to stop the spread. 

NHSX, the body responsible for setting NHS data usage policy and best practice, has been developing a contact tracing app which is currently undergoing effectiveness trials at RAF Leeming. As it stands, the app either tells you “You’re okay now” or “You need to isolate yourself and stay at home”. It seems likely that this or a similar app will be rolled out over the UK in the coming months. 

Commercial surrogacy arrangements – within or without the law?

1 May 2020 by Rosalind English

In the latest episode of Law Pod UK, Rosalind English talks to William Edis QC of 1 Crown Office Row about the recent Supreme Court ruling on whether damages can be claimed against the NHS in respect of a commercial surrogacy arrangement in California, following the admitted negligence of a hospital in the UK rendering the respondent unable to bear a child. See Bill’s post on that ruling here.

Commercial surrogacy agreements – that is where the surrogate makes a profit for bearing the commissioning mother’s child – are against the law in this country. But it is not illegal to travel, so those with the means to do so can go to another jurisdiction where such arrangements are common practice. An interesting legal conundrum arose where a woman sought damages for such an arranged surrogacy in the States where a UK hospital, by its own admitted negligence, had rendered her unable to have a child. Here are the relevant laws and cases referred to in the podcast episode:

Surrogacy Arrangements Act 1985

Human Fertilisation and Embryology Act 1990, section 27; Human Fertilisation and Embryology Act 2008, section 33

Briody v St Helens [2001]

XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832

Whittington Hospital NHS Trust (Appellant) v XX (Respondent) [2020] UKSC 14

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Making Sense of the Amended Lockdown Law

1 May 2020 by Guest Contributor

As has been widely reported, not least on this blog, the ‘lockdown’ imposed by the UK Government to tackle the continuing pandemic is governed in the main by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) (the Original Regulations).

What has been less widely publicised is that the Original Regulations were recently amended by the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 (SI 2020/447) (the Amending Regulations). These came into force at 11am on Wednesday 22 April 2020. 

As this could otherwise get confusing, I’m going to call the Regulations that are currently in force, i.e. the Original Regulations as amended by the Amending Regulations, the Current Regulations.

The Amending Regulations enact a number of changes to the lockdown law, some more consequential than others. This post does not go through the more insignificant changes in any great detail; for example, Amending Reg (4)(b)(iv) correcting the name of DWP in Original Reg 6(i)(iii) from “Department of Work and Pensions” to “Department for Work and Pensions”. 

What this post does instead is outline four of the changes provided for by the Amending Regulations in ascending order of importance.