A case in which the High Court reminds the regulator of requirements for imposing curbs on free speech.
Dr Samuel White is a GP. Earlier this year he posted a seven minute video on Instagram explaining that he had resigned from his job because, he said, he could no longer stomach the lies surrounding the NHS approach to the pandemic and because medical professionals were having their hands tied behind their backs in treating patients. He stated that he was being prevented from using treatments that had been established as being effective both as prophylaxis and treatment for Covid-19, naming hydroxychloroquine, budesonide inhalers and ivermectin, which he described as safe and proven. He raised concerns about the safety of the Covid-19 vaccine and claimed that 99% of people who contract the virus survive, with the only fatalities in those with multiple medical problems. He stated that masks do absolutely nothing. He invited his viewers to do their own research, but referred to a number of websites which supported his view.
A complaint was made to the General Medical Council, which commenced an investigation into his fitness to practise as a doctor. The GMC referred his case to an Interim Orders Tribunal on the basis that his practise should be restricted pending investigation and the conclusion of the case. The role of an IOT is not to find facts, but to conduct a risk assessment based on the information before them and determine whether an interim order is necessary to protect patients or otherwise in the public interest.
In R (Babbage) v The Secretary of State for the Home Department  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 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 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.
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  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?
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  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.
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 ().
Mr Justice Colton observed of JR123: “He finds the process of repeatedly having to disclose the convictions to be oppressive and shaming” ().
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:
The appeal was allowed on the basis that care workers making arrangements to secure the services of a sex worker for C would place the care workers in peril of committing an offence contrary to section 39 of the Sexual Offences Act 2003 (“SOA”).
The issue was whether care workers would commit a criminal offence under section 39 of the SOA if they made practical arrangements for C to visit a sex worker. C had the capacity to consent to sexual relations but not to make the arrangements.
Section 39(1) SOA states that:
A person (A) commits an offence if—
(a) he intentionally causes or incites another person (B) to engage in an activity,
(b) the activity is sexual,
(c) B has a mental disorder,
(d) A knows or could reasonably be expected to know that B has a mental disorder, and
(e) A is involved in B’s care in a way that falls within section 42.
The central question was whether the care workers would “cause” C to engage in sexual activity by making the arrangements. Hayden J concluded that they would not cause C to engage in sexual activity.
The Secretary of State for Justice appealed on three grounds:
The Judge misinterpreted section 39 SOA;
To sanction the use of sex is contrary to public policy (this ground of appeal was raised by way of an opposed amendment);
The Judge erred in concluding that Articles 8 and 14 of the European Convention on Human Rights (“ECHR”) required his favoured interpretation.
In 2015, the Court of Appeal found that the fast-track procedure rules for appeals against the refusal of some types of asylum claim (the FTR) was “structurally unfair, unjust and ultra vires” (R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber)  EWCA Civ 840;  1 WLR 5341, known as DA6). The Court of Appeal quashed the FTR because this structural unfairness “created a risk that the applicants would have inadequate time to obtain advice, marshall their evidence and properly present their cases”, which “created an unacceptable risk of unfairness in a significant number of cases”.
Six years later, the question in R (on the application of TN (Vietnam)) v Secretary of State for the Home Department UKSC 41 was straightforward: where a decision had been taken under the FTR, should it also be quashed, or must the person who was subject to the decision demonstrate that the decision itself was unfair, rather than merely issuing from an unfair system?
The High Court, Court of Appeal and Supreme Court all answered unequivocally that structural unfairness was not enough to quash an individual decision. Unfairness on the facts had to be found, or the decision would stand.
Background and Decisions Below
TN had, as the court acknowledged, a complicated procedural history, involving a number of applications for asylum, all of which (of those which had been determined at the time of trial) had been rejected. In hearings in those applications, TN had been represented by counsel. However, successive decisionmakers found TN’s claim not to be credible, and on 22 August 2014, the First-tier Tribunal (FTT) rejected her appeal. It was this rejection, decided as it was by a tribunal following the procedural rules in the FTR, which TN sought to challenge in this case.
One reason TN’s evidence was not believed was that it was inconsistent, giving different dates at different times for her mother’s death, and changing the basis of her application for asylum without explaining fully the reasons for the changes. This raised a question plainly discussed, but in the end not legally consequential, of the approach taken to evidence of trafficking, given that trafficking victims frequently change their stories, partly because they will often not know (in terms) that this is what they are (see paragraphs -).
In a detailed judgment, Ouseley J rejected TN’s application, upholding the Tribunal’s decision. His judgment involved a detailed review of the history of TN’s case, after which he concluded that the Tribunal’s decision was not tainted by the structural unfairness of the FTR.
In the Court of Appeal, Singh LJ gave the leading judgment (with whom Sharp and Peter Jackson LLJ agreed), holding that the “fundamental reason” that the application had to fail was that there was “a conceptual distinction between holding that the procedural rules were ultra vires and the question whether the procedure in an individual appeal decision was unfair”.
The legal lens through which this fundamental conceptual distinction found expression was the principle of jurisdiction. Singh LJ considered two bases on which the FTT could fail to have jurisdiction, rejecting both. First, he held that the ultra vires nature of the FTR did not divest the FTT of jurisdiction in the “pure and narrow sense” of having “the legal authority to decide a question”. The Tribunal’s jurisdiction was not created by the FTR but rather by statute; the FTR was “merely a rule which regulates procedure and form”.
The second basis on which the Tribunal might have lost jurisdiction was in the “post-Anisminic understanding of jurisdiction … that a body has acted in a way which is unlawful, including (for this purpose) in a way which is procedurally unfair”. This too was rejected: the Tribunal had not acted in such a way; even though the FTR had created a structural risk that it might, that risk had not eventuated.
Singh LJ went on to set out four factors which the court should take into account when the fairness of an individual decision made under the FTR was challenged on the basis of unfairness. These were, paraphrasing: (1) a high degree of fairness is required in the context of asylum applications; (2) the FTR created an unacceptable risk of unfairness in a significant number of cases; (3) there is no presumption that the procedure in any one case was fair or unfair and what is necessary is a causal link between the risk of unfairness created by the FTR and what happened in a particular case; and (4) the finality of litigation is important, and as such delay is relevant, as are questions as to what steps were taken, and how quickly, to adduce evidence later relied on.
The Claimants sought a declaration of incompatibility under section 4 of the Human Rights Act in respect of section 1(1)(d) of the 1967 Act. It was their contention that this section is incompatible with Articles 2, 3, 8 and 14 of the ECHR. The Court dismissed the claim in its entirety.
The First Claimant was a 25-year-old woman with Down’s syndrome. The Second Claimant was the mother of the Third Claimant. At 35 weeks’ gestation, the Third Claimant was identified as being very likely to have Down’s syndrome and the Second Claimant’s evidence was that during her pregnancy that she had been made to feel that a life with Down’s syndrome was of no value. The Third Claimant is now two years old has met all his developmental milestones.
The Legal Framework
As is now in force, s.1(1) of the 1967 Act provides that there may be a medical termination of a pregnancy if two medical practitioners are of the opinion that, inter alia, “there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped” (under subsection (d)).
Whereas Parliament has set a general upper time limit for abortions at 24 weeks, this does not apply to abortions on grounds of foetal abnormality.
Whilst there is guidance from public medical authorities on the various factors influencing the severity of a “handicap”, the guidance does not offer a legal definition of “substantial risk” or “serious handicap”.
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