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A three-judge panel of the Upper Tribunal (Lady Poole, UTJ Citron and UTJ Brewer) in Cruelty Free International v Information Commissioner & Home Office[2026] UKUT 328 (AAC) has held that Article 10 ECHR can, in narrow circumstances, confer a right to receive information from a public authority – but that this particular Appellant still cannot have any.
Background
Cruelty Free International (“CFI”), a campaigning organisation opposed to the testing of cosmetic products on live animals, sought information about Home Office licences authorising scientific testing.
The Home Office declined to disclose all the information sought. It relied on section 44(1)(a) of the Freedom of Information Act 2000 (“FOIA”), which exempts information whose disclosure “is prohibited by or under any enactment”, together with section 24 of the Animals (Scientific Procedures) Act 1986 (“ASPA”). Section 24 ASPA, in broad terms, makes it a criminal offence to disclose information obtained in the course of licensing such experiments where that information was given in confidence.
On the 10th of September, the National Commission into the Regulation of AI in Healthcare published its blueprint for regulating AI in the health service. It runs to 119 pages and 44 recommendations. This follows the equally hefty Jurisdiction Task Force legal statement on liability for AI harms, which I discussed with Jacob Turner and Michael Workman in episode 236 of Law Pod UK.
In this episode, to pick out what matters for lawyers, I’m joined by Robert Keller KC and Marcus Coates-Walker of One Crown Office Row. We discuss, amongst other things, the difficulty with making contractual liability the answer to harms caused by AI, which doesn’t quite work in our jurisdiction, where most healthcare is provided through the NHS, where there isn’t a contract. So the contractual provisions will help work out as between defendants who is most to blame and who is at fault. But it doesn’t necessarily resolve the issue of whether a claimant has a claim in the first place, because often there won’t be a contract. The contract might be an answer conceivably in a private healthcare situation, but it’s always gonna be much less helpful in an NHS paradigm, which is the, the, the natural paradigm in this jurisdiction.
If you have a comment on what you hear in this and other episodes, do get in touch with us at LawPodUK@1cor.com.
Songs of the People mark 80 years since David Maxwell Fyfe’s Nuremberg speech
29 August 2026 marked the 80th anniversary of David Maxwell Fyfe’s affirmation of universal human rights in his speech at the Nuremberg Trials. In honour of the anniversary, Songs of the People staged Sue Casson’s Dreams of Peace and Freedom at St James’s Piccadilly and are launching a new podcast.
The podcast is entitled ‘Could we do more to secure human rights?’ after the topic first discussed 75 years ago by a panel including David and Eleanor Roosevelt in a BBC Home Service broadcast. The hosts are Maxwell Fyfe’s great-grandchildren, Lily and Robert. They interview a range of leading lawyers, academics, educationalists, activists, parliamentarians, religious leaders, charities and organisations, including Lord David Alton, Chair of the Joint Committee on Human Rights, and Lady Brenda Hale, former President of the Supreme Court.
For more information about the original broadcast and for a thread with further description, see here and here.
EU Member states progressing towards ‘return hubs’
Five EU Member States have announced further progress towards setting up third-country ‘return hubs’ to address irregular migration.
Representatives from the governments of Germany, Austria, Greece, Denmark and the Netherlands met on Friday 4 September, agreeing plans to move towards a deal with a non-EU country by the end of 2026. No host nation has been formally named, although some reports indicate that discussions have been centred on Uganda and Rwanda.
Critics have raised human rights concerns. The Council of Europe has claimed that return hubs create ‘considerable human rights risks’. Going further, Amnesty International describes its position as being that return hubs ‘cannot be implemented in a human rights-compliant manner’.
Palestine Action activists to appeal against sentence
Palestine Action activists known as the Filton 4 have sought permission to appeal against custodial sentences imposed on them for causing criminal damage to an Elbit Systems facility. According to reporting, the activists contend that the sentencing judge erred in finding their offences were aggravated by a terrorist connection under the Sentencing Act 2020, section 69.
For section 69 purposes, ‘terrorism’ has the meaning given under the Terrorism Act 2000, section 1. Accordingly, the judge directed himself (at [19]) that in the circumstances there would a terrorist connection if the offence: (a) involved serious damage to property; (b) was designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public; and (c) was for the purpose of advancing a political or ideological cause. He proceeded to find that all three elements were present.
That finding was criticised in some quarters. Amnesty International issued a statement claiming that ‘criminal damage has never been treated as terrorism within the UK justice system before and it is dangerous to treat them as the same thing’. A leading lawyer was reported arguing that the use of section 69 amounted to a ‘constitutional threat’ as it involved ‘recategorising the offence without a trial’. On the other hand, another prominent commentator argued that the finding ‘didn’t make much difference in the end’ as the judge said in his sentencing remarks (at [4.10]):
It is an aggravating factor that the offending had a terrorist connection. In measuring the increase to the sentence on account of that factor I take account of the fact that you did not intend to injure any person, and that part of your motivation in taking action was to prevent the death and suffering of Palestinian civilians, including children. That significantly reduces the increase in the sentence that would otherwise be appropriate.
The judge adopted a starting point of 5 years’ custody (50% of the statutory maximum) and applied a two-year uplift to take account of aggravation ([4.9], [4.12]). After factoring in mitigation, he ordered custodial terms of between 5 and 6 years and sentenced one offender to a further consecutive term for causing GBH to a police officer ([8.1]-[8.4]).
In the Strasbourg court
Retrospective denial of parole violates Article 7
In a Chamber judgment, the ECtHR has held that retrospective application of an irreducible life sentence regime violated Article 7 ECHR. The case is Asciutto & Ors v Italy(Application no. 23169/16 & ors, judgment of 03 September 2026).
The applicants were prisoners serving sentences for mafia-related offences. Having initially received reducible life sentences, they lost their entitlement to parole under section 4 bis of the Italian Prison Administration Act as amended in 1992. They had two main complaints: first, that the section 4 bis regime violated Article 3 because it generated an irreducible life sentence without possibility of review; and second, that the regime had been applied retrospectively in violation of Article 7.
In relation to the first complaint, the ECtHR recalled its previous finding that the section 4 bis regime violated Article 3: Marcello Viola v Italy (No 2) (Application no. 77633/16, judgment of 13 June 2019). In the wake of that judgment, the Italian courts and legislature had sought to reform the regime in order to supply a meaningful possibility of review. The court considered those reforms and concluded (at [192]) that the regime was no longer, of itself, incompatible with the Convention.
In relation to the second complaint, the court reiterated (at [198]) that Article 7 applies to ‘penalty’ measures but not mere ‘execution’ or ‘enforcement’ measures. Acknowledging (at [199]) that the distinction may not always be clear cut, the court concluded (at [216]) that the shift from reducible to irreducible life sentences was a sufficient alteration in the applicants’ penalties to found an Article 7 complaint.
The court proceeded to determine that Article 7 had been violated on two grounds. First, the section 4 bis regime had been applied despite not being in force at the time of most of the applicants’ offences, whereas Article 7 “unconditionally prohibits” ([246]) retrospective application of the criminal law to the accused’s disadvantage ([253]). Second, despite being in force at the time, the section 4 bis regime had been retrospectively applied to one applicant’s sentence on the basis of case law that did not develop until some 10 years after the conviction, thus violating the principle of legality ([262]).
On the UKHRB
David Hart KC considers the Court of Appeal’s judgment in Thomas v Nicholas [2026] EWCA Civ 847, which will go to the Supreme Court for appeal. The case raises issues about the conceptual boundary line between nuisance and negligence in the context of the rule about hypersensitive activities.
On Law Pod UK
In the latest episode Rosalind English discusses with Robert Kellar KC and Marcus Coates-Walker of 1 Crown Office the extent to which harms done to patients by “medical devices” enhanced by AI can be predicted and litigated in the future, when this becomes the norm. The blueprint for allocation of liability in this context is set out in the National Commission for the Regulation of AI in Healthcare’s latest document, published on the 10th of September.
This unusual neighbour dispute may clarify in time the law of nuisance upon which the Court of Appeal was divided. The CA took the unusual step of granting permission to appeal to the Supreme Court on a 2-1 decision.
The Nicholas brothers, who breed falcons for the Middle East market (£100,000 or more per bird), have an aviary near St Just in Cornwall. Next door lives Mr Thomas, whose activities on his land gave rise to this litigation. Falcons are highly sensitive to disturbance during their breeding season. Mr Thomas and his company carried out building works, operated a scaffolding storage business, and kept an excavator close to their boundary. The consequence of these activities, as HHJ Russen K.C. found at first instance, was the death of three gyr falcons, damage to falcon eggs, and total losses of £258,500. This was the culmination of a whole series of neighbour spats about septic tanks, drains and rights of way.
The judge found that these falcon-related losses were caused by private nuisance and negligence arising of the use of Mr Thomas’s land for which he and his company were responsible.
The legal controversy arises out of the principle that a claimant cannot increase the tortious liabilities of his neighbour by complaining that an over-sensitive activity on his land has been affected by the neighbour’s activities. He can only complain if he can say that his neighbour’s activity would have affected his land even if it had not been over-sensitive. The textbook case is Robinson v. Kilvert (1889) 41 Ch D88; very delicate papermaking by C affected by heat from D’s premises, which would not have affected “ordinary” papermaking.
The Nicholases sought to finesse this rule by saying that their land was a suitable place for an aviary; it was not a hypersensitive activity per se, but only during the breeding season, and given that Mr Thomas was fully aware of that short-term sensitivity, he should be found liable.
Unusually, all three Court of Appeal judges answered things differently. Whipple LJ said Mr Thomas was liable in nuisance and in negligence. Nugee LJ said he was not liable in nuisance, but liable in negligence. Moylan LJ said he was liable in neither. So, the falcon breeders won. For the moment.
Nuisance
As for nuisance, Nugee and Moylan LJJ agreed that the claimant’s falcon business was not a “common and ordinary” use of the claimants’ land. Whether an interference is “substantial” with that use and whether that use of land by the claimants is “ordinary” must both be assessed objectively — by the impact on the ordinary or average occupier, not by the particular sensitivities of the actual claimant.
As noted above, a claimant carrying on sensitive operations can still recover in nuisance, but only if the interference would substantially affect the use of his land, were it to be used for ordinary purposes. Equally, if a defendant’s use of his land is ordinary, then his neighbour cannot complain about it.
“Ordinary” is a term of art in nuisance law, on both sides of the coin, both in terms of a claimant’s use of his land and a defendant’s use of his land. The terminology dates back to Bamford v. Turnley (1862) 3 B&S 66. Some surprising activities are ordinary; to demolish your property and build another one, with all the attendant dust, noise and disturbance, may well be “ordinary,” however grim for your neighbour temporarily, as long as the builders do it competently and with proper consideration for your neighbour (or, using another 19th term of art used in the Bamford case, “conveniently”).
One issue which weighed heavily with the judge (and Whipple LJ in the CA) was the finding that the locality was suitable for such a sensitive use as an aviary. But the suitability of a location for a particular activity, as the judge had found, does not of itself make that activity an ordinary use.
Nugee LJ gave his interpretation of the judge’s findings at [113]: the location was suitable, and therefore was not a special or unusual use, but an ordinary one. Nugee LJ thought that the therefore was a non-sequitur. The true test was whether the defendant’s actions interfered with the ordinary use of the land. The caselaw (Robertson about delicate paper, a Capetonian case about sensitive telegraphy, and their restatement in Fearn v. Tate [2023] UKSC 4) were dispositive against liability in nuisance: [126]. This analysis was endorsed by Moylan LJ at [168]ff.
Nugee LJ also identifies the strongest reason for rejecting this application of this test, namely the evidence about the excavator, and its effect. It had broken down, and it had been parked near the boundary by Mr Thomas and left there. It was left with its bucket raised. It was purely this visual interference with the sight lines of the falcons which led them to “going mental”: [39]. As Nugee LJ put it at [138], this could not have crossed the threshold of constituting a substantial interference with the ordinary use of the claimant’s land. It only had an impact because of the very particular use, and was therefore not a nuisance. Most of us might have been irritated by this wayward parking of a large vehicle close to our boundary, particularly if we were irritated by our neighbour anyway, but this was not this claim. It was that it had a specific effect on the falcons and their sight lines.
Negligence
But the CA (Whipple and Nugee LJ, with Moylan LJJ dissenting) found for the Nicholases in negligence.
Mr Thomas argued that if his actions were not a nuisance, he could not be negligent, and that imposing a duty of care would prevent lawful use of his land. The law in this area, being the law of property, should be driven by nuisance principles, and to do anything else would bring incoherence into the law. The majority rejected both arguments, observing that just because Mr Thomas was not liable in nuisance, he could not act with disregard for the interests of his neighbours and cause as much disturbance to the falconry business as suited him to do so, he would not be acting “conveniently”.
The Court added that the relationship between the law of nuisance and negligence in the present circumstances was not incoherent. It held that an occupier may not be liable in nuisance (because he was carrying out an ordinary activity) yet still owe a duty of care to avoid causing specific, foreseeable harm to a particular neighbour. Mr Thomas knew the falcons were sensitive during the breeding season, and there were alternative locations where the bulldozer with its raised bucket could have been parked. The judge had also found that the use of the land for the scaffolding business was not ordinary. And the building works, though “ordinary” in themselves, were carried out without proper consideration of the falcons’ breeding season.
Moylan LJ’s dissent fastened on the fact that the same activities which were not found to be a nuisance were found to be negligent. He found that no duty of care arose in such circumstances because of the dangers of incoherence between the two torts. He considered “that the issue should be phrased as being whether a duty of care in negligence can be imposed on the owner of land the effect of which is inconsistent with the core principles of the law of private nuisance.” He concluded that it was no duty, not least because the same factual allegations gave rise a finding of no liability in nuisance but liability in negligence.
Comment
At first sight, this appears to be a rather simple case. Mr Thomas behaves in a rather unneighbourly fashion, knows his land immediately abuts the aviary and he causes losses to its owners. Most people may think he should lose. But the more you think about the legal problem, the more it causes some strain to the causes of action in nuisance and negligence, as currently formulated. Nuisance has to have some control mechanism preventing a sensitive use by C from sterilising neighbouring land uses, just as it requires the interference to C’s use of his land to be substantial. But negligence must play some part, however residual. Getting too purist risks offending against Lord Atkin’s 1941 warning about old causes of action:
“When these ghosts of the past stand in the path of justice, clanking their mediaeval chains, the proper course for the Judge is to pass through them undeterred.”
Whatever the Supreme Court says about nuisance and sensitivity, there must be room for some liability in negligence to cope with hard cases, arguably this one.
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