We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
In R (Babbage) v The Secretary of State for the Home Department [2021] EWHC 2995 (Admin), the Claimant applied for judicial review, claiming that his immigration detention from 27 February 2020 to 29 April 2021 had been unlawful and/or that there was a public law error relating to the delay in the provision of s.4 accommodation. Soole J gave a potentially significant judgment concerning the ambit of the ‘grace period’ for locating s.4 Immigration and Asylum Act 1999 accommodation, i.e. accommodation provided to failed asylum seekers. The judge also made some apposite comments concerning the requirement for appropriate evidence in unlawful detention claims from the relevant decision maker.
The Facts
The Claimant, a Zimbabwean national, was detained as Foreign National Offender and deportation proceedings pursuant to the automatic deportation provisions in the UK Borders Act 2007 were commenced. He was detained under Immigration Act powers from September 2013 until December 2015 at which point his release was ordered by the court on the basis that there was no realistic prospect of returning him to Zimbabwe. During his initial detention he made an application for asylum which was subsequently refused, and he became appeal rights expired. Following a short custodial sentence imposed on 25 September 2019, the Claimant was detained again between 22 October and 4 December 2019, following which an Emergency Travel Document was agreed in principle by the Zimbabwean Embassy, although no ETD was ever subsequently issued. On 7 February 2020, the Claimant received a short custodial sentence for breach of a community order. Upon his release he was detained again under Immigration Act powers. On 25 May 2020 the Case Progression Panel recommended the Claimant’s release. On 7 April 2021 the FTT granted bail in principle subject to the provision of s.4 accommodation. The SSHD granted s.4 accommodation on 15 April but was not provided with accommodation and released until 29 April 2021.
This was a renewed application by the claimants for permission to proceed with a judicial review challenge to the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which requires a registered person who runs a regulated activity in a care home to ensure that any person entering the premises has been vaccinated, unless for clinical reasons that person is exempt.
These new regulations regarding the mandatory vaccination of care workers came into effect on 11 November 2021. The claimants, both employed by care homes, challenged the legality of these regulations (passed under the Health and Social Care Act 2008). Whilst the claimants accepted that the 2021 Regulations fell within the scope of the 2008 Act, they argued that s.45E of the Public Health (Control of Disease) Act 1984 was engaged and, when the provisions are read together, s.45E precludes Regulation 5(3)(b). Section 45E provides that Regulations made under s. 45B or s. 45C may not include provision requiring a person to undergo medical treatment.
A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (Appellant) – UKSC 2020/0133 Court of Appeal (Civil Division)
The Supreme Court has upheld the Court of Appeal’s decision that to have capacity to engage in sexual relations, a person needs to be able to understand that their sexual partner must have the capacity to consent to the sexual activity and must, in fact, consent before and during the sexual activity.
The appellant, JB, is a 37 year-old single man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. He has a complex diagnosis of autistic spectrum disorder (Asperger’s syndrome) combined with impaired cognition as a result of suffering significant brain damage from epilepsy.
JB has expressed a strong desire to have a girlfriend and engage in sexual relations. Part of JB’s diagnosis of Asperger’s syndrome caused him to be
…obsessionally fixated on a particular woman, sending inappropriate sexual messages, inappropriate touching, and targeting the vulnerable
His previous behaviour towards women has led the respondent local authority to conclude that he cannot safely have unsupervised contact with them. JB had argued in the Court of that he had capacity to consent to sexual relations in circumstances where the expert evidence had found that JB understood the mechanics of sexual acts and the risks of pregnancy and sexually transmitted disease but that his ‘understanding of consent’ was lacking.
The outcome for JB, if he was found to lack capacity to make decisions in respect of sexual relations, would be that he would be deprived of all sexual relations and that no other person could consent on his behalf (S27(1)(b) Mental Capacity Act 2005(MCA).
JB was successful at first instance in the Court of Protection, but the Court of Appeal reversed the decision and found in favour of the Local Authority. On further appeal to the Supreme Court the court agreed with the Court of Appeal the result being that JB did, in fact, lack capacity.
The Court of Appeal has recently upheld the High Court decision that Section 38 of the Police and Criminal Evidence Act 1984 (“PACE”) is not incompatible with Article 5 of the European Convention on Human Rights (“ECHR”) insofar as it purports to authorise the detention of minors for their own protection, in the case of Archer v Commissioner of Police of the Metropolis[2021] EWCA Civ 1662.
For a more detailed exploration of the factual background and High Court decision, please see my post on the UK Human Rights Blog following the lower court’s decision.
Background
In 2012, the Appellant, then a juvenile, was arrested on suspicion of violent disorder and possession of an offensive weapon. This happened five days after he was struck on the head and stabbed in the back and head by people he described as local gang members. He was charged with those two offences, but refused bail for the following reasons by Sergeant Smith:
[…] it is believed necessary to further detain the person for their own protection, that the detained person has been arrested for a non-imprisonable offence and it is believed necessary to further detain to prevent physical injury to another person, that the detained person has been arrested for an imprisonable offence and it is believed necessary to further detain in order to prevent the commission of a further offence.
The grounds are Dp [detained person] has been involved in a ‘gang’ related fight where he has sustained injuries that required hospital treatment. It is feared that if released on bail there will be repercussions where he may sustainfurther injuries or inflict violence upon his original intended victims
This was one of those deeply troubling cases where there was disagreement amongst the family members over whether their incapacitated brother/father should continue with clinically assisted nutrition and hydration. One brother had applied for ANH to be discontinued, but because of the objections of the patient’s son, it was said that he would “continue to be cared for by nursing staff”.
As Hayden J observed, this was a “troubling non sequitur”:
Family dissent to a medical consensus should never stand in the way of an incapacitated patient’s best interests being properly identified. A difference of view between the doctors and a family member should not be permitted to subjugate this best interest investigation.
This particular hearing was ex post facto: in 11th June 2021, Hayden J delivered an extempore judgment in which he indicated why the continued provision of nutrition and hydration to GU, in the manner outlined above, was contrary to GU’s interests. However, having concluded that it was not in GU’s best interests to continue to receive CANH at the hearing on 11th June 2021, he considered it was necessary to afford RHND the opportunity of explaining what had happened. Amelia Walker of 1 Crown Office Row represented the hospital in these proceedings.
On the one hand, there are raptors. On the other there are game birds. The former are highly protected under statute. The latter bring in serious revenues to rural businesses for shoots. Hen Harriers (image right) are dependent on, amongst other things, the protein from grouse chicks for their young.
On the cuteness scale, I know who wins, wings down.
But here we have it. The voracious teenagers that you see in the first paragraph are the protected species. The fluffy number in image 2 is a designated target for paying hunters, as well as mother hen harriers.
This case was an appeal by the RSPB and Dr Mark Avery, a scientist specialising in nature conservation, against a ruling by the court below that the grant of a licence by the respondent, Natural England (NE), to “take and disturb” hen harriers from the Northern English uplands for scientific, research or educational purposes pursuant to the Wildlife and Countryside Act 1981 Pt I s.16(1)(a) was lawful.
Background law and facts
Under Article 4 of Directive 2009/147 on the conservation of wild birds, EU Member States are required to designate special protection areas (SPAs) for their conservation. There are two such SPAs in England.
Under this network of rules it is a criminal offence to disturb these protected birds. Nevertheless they have been persecuted: killing and nest destruction by contractors employed to maximise the number of grouse available for shooting in the autumn.
In an effort to resolve the impasse between conservationists and landowners running shoots, NE in 2015 recommended piloting a “brood management scheme”, whereby eggs and chicks would be removed from the parental hen harrier nests, reared in captivity and then released when they were fully fledged into a suitable habitat, away from the grouse moors. NE duly received a licence application in 2017, on which they carried out a Habitats Regulations Assessment pursuant to Regulation 63 of the Conservation of Habitats and Species Regulations 2017. This report did turn up a potential decrease in breeding and juvenile survival as the principal risk of the trial and suggested potential mitigation. Apparently no such mitigation was available. So the NE completed a Technical Assessment and concluded that there was no satisfactory alternative to the proposed scientific trial.
The first licence for relocation of eggs and chicks was granted in January 2018.
Salvato v Secretary of State for Work and Pensions [2021] EWCA Civ 1482 — read judgment
The Court of Appeal has allowed the Secretary of State’s appeal against a ruling that the system of calculating childcare for Universal Credit indirectly discriminates against women. The judgment below was reported in the blog here.
Childcare costs under Universal Credit
This is a case about the payment of childcare costs under Universal Credit. Universal Credit claimants can claim an element reimbursing them up to 85% of the costs of childcare while they go to work.
Ms Salvato, a lone parent, claimed that the system for calculating childcare costs indirectly discriminated against her on grounds of sex contrary to Article 14 when read with Article 1 Protocol 1 of the European Convention on Human Rights. Her complaint related to the way in which childcare costs are calculated. Unlike other elements of Universal Credit, such as the housing costs element, the childcare costs element is only payable after the claimant has already paid the costs of the charges, rather than merely incurred them (Ms Salvato’s legal representatives dubbed this requirement the ‘Proof of Payment’ rule). She maintained that the rule placed her (and other women in her position) at a disadvantage, because unlike many men she could not afford to pay the childcare costs upfront.
A “HeLa” cell is, or was, the name of a cell from a line of fast producing cancer cells that was taken from the tumour of a patient who died of cervical cancer at Johns Hopkins Hospital in 1951. These cells reproduce at such a rate they have been described as “immortal” and they have touched all corners of medical research and therapy in the past seven decades. They’ve formed the basis of the polio vaccine; they’ve helped with research into IVF and infertility as well as HIV. They were of tremendous importance to medicine then and medicine now.
Henrietta Lacks’ family, once they were made aware of the continuing research on her cells, have made various efforts to claim reparations for this non-consensual use of her body parts. The estate has now launched proceedings against Thermo Fisher, the pharmaceutical company that bought the cells from the hospital at the time; see my previous post on this lawsuit here.
In Episode 152 of Law Pod UK I discuss this case with Jacob Serco, Professor of Law at the College of Law and a specialist in genomic biology at the University of Illinois, where his research focuses on the legal and ethical implications of advanced biotechnologies, especially as related to intellectual property. He is a leading expert on IP protection for genome-editing technologies, including CRISPR.
Professor Serco provides an illuminating guide to the US law on biotechnology in this episode and we discuss the prospects of this particular lawsuit. But this is only the latest of a series of episodes in which Henrietta Lacks’ cells have been in the limelight. In October last year the Lacks foundation received a “six figure” donation from the Howard Hughes Medical Institute by way of “reparation”; in 2013 the US National Institute of Health settled upon a new agreement under which Lack’s genome data would be accessible only to those who apply for and are granted permission. The modern interest in her case was sparked by the book by Rebecca Skloot about her case. The Immortal Life of Henrietta Lacks stayed on the NYT bestseller list for two years and was followed by a film of the same name.
What happens when someone is convicted of a criminal offence and is given a custodial sentence? Sometimes, the individual will serve at least part of their sentence in prison and the remainder on licence. But, what happens after they’ve served the totality of their sentence?
Some convictions can, after a certain period of time, become “spent”. This means that anyone convicted of such offences is treated as never having been convicted of such offences. The Rehabilitation of Offenders (Northern Ireland) Order 1978 calls these people “rehabilitated persons”. However, the 1978 Order contains a large number of exceptions, so that some convictions can never become spent. JR123’s application for judicial review in the Northern Ireland High Court concerned one of these exceptions: sentences longer than 30 months.
Readers of this blog may be familiar with the changes in disclosure duties for criminal convictions which came about as a result of the cases of Gallagher, P, G & W v Home Secretary [2019] UKSC 3 (see Samuel March’s post on this topic). JR123 looks at another aspect of the framework of rehabilitation: the ability to be rehabilitated in law at all.
The facts
JR123 had been convicted of possession of a petrol bomb, arson, burglary and theft in 1980. Having been given multiple custodial sentences, he had been released from custody in 1982 and had served the remainder of his sentences on license. In the years which followed, JR123 had no further involvement with the criminal justice system. However, given the exceptions in the 1978 Order, his convictions could never be spent and thus he could never be rehabilitated. This was problematic on multiple fronts, particularly his employment prospects and personal life. Many things which we take for granted, for example applying for insurance, obtaining a mortgage, renting properties, and so on, become considerably difficult when having to disclose convictions which are almost 40 years old ([14]).
Mr Justice Colton observed of JR123: “He finds the process of repeatedly having to disclose the convictions to be oppressive and shaming” ([6]).
In the latest Episode of Law Pod UK Rosalind English talks to Robert Kellar QC of 1 Crown Office row about the proposed reforms to the regulation of doctors, nurses, opticians, chiropractors and a range of other professionals in the world of healthcare. It’s particularly important to allow regulators to react to unexpected challenges, as we’ve found since the recent Covid-19 emergency.
As Robert explains, the proposals directed at overhauling the system of professional healthcare regulation aim to introduce greater consistency across the regulatory bodies (we have an impressive nine organisations at the moment). Whether this and other proposals to increase the autonomy of these bodies will increase public safety whilst still respecting practitioners’ rights remains to be seen.
Here are the links to the Government White Paper and the Consultation Paper discussed in Episode 151:
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.
Recent comments