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Dr Lawrence McNamara is an academic at the University of York and a Senior Research Fellow at the Bingham Centre for the Rule of Law
A new practice direction reveals some valuable progress in the management of closed judgments, but leaves uncertainty and, very worryingly, indicates that some judgments will be destroyed.
Closed material procedures (CMPs) have become an established option for the government when it wants to rely on security-sensitive evidence in civil litigation.
In immigration matters in the Special Immigration Appeals Commission (SIAC) and in the full range of civil proceedings under the Justice and Security Act 2013, CMPs permit the state to rely on evidence that will not be disclosed to the other party who may be (for example) subject to deportation or a claimant in an action alleging state complicity in rendition.
Open and closed
judgments may be handed down. The latter will not be seen by non-state parties,
their lawyers or the public.
In parallel,
there have been heavy restrictions on access to and reporting of criminal
terrorism cases, most notably Incedal.
CMPs and closed
judgments are by nature a departure from fundamental rule of law standards of equality
of arms and open justice. The Supreme Court pointed this out in Al
Rawi and the Special
Advocates have been highly critical of them. Nonetheless, there is no sign that the CMPs
will disappear. Instead, the trend has slowly been towards managing them and
finding ways to mitigate some of the deficiencies.
A six-paragraph Practice Direction on Closed Judgments, issued on 14 January 2019, reveals some significant steps in that direction, but it lacks clarity in its scope and reveals a very troubling proposal for destruction of judgments.
My response to the proposals – as I saw things then – is on my blog here. Thoughts of divorce reform throw up two important human rights issues: one a direct Article 6 question; and the other – which it is surely time for law reformers and the government to confront? – is a discrimination point (Art 14).
But first a little history. The then Labour government, on Leo Abse MP’s private member’s bill, passed with (more or less) approval of the Church of England, the Divorce Reform Act 1969 (in force from 1 January 1971). It was consolidated into Matrimonial Causes Act 1973 (MCA 1973) which represents the modern law and the modern statutory underpinning for financial distribution on divorce or nullity. Mirror provisions apply for same gender couples: Civil Partnership Act 2004. Wholly different finance rules apply for unmarried cohabitants.
Matrimonial causes
The Matrimonial Causes Act 1973 (MCA) section 1 is very simple. There is one ground for divorce: irretrievable breakdown of marriage (s 1(1)). To prove that ground a petitioner (P) must prove one or more of five facts: adultery; behaviour making it unreasonable for P to live with the other spouse/partner (R); desertion for two years; living apart for two (with consent); or five years.
Reformers – including from their inception, the group of family law solicitors, now Resolution – have objected to the blame inherent in the first two facts, and the tendency which this may produce to leave a nastier taste, than need be, in the mouth of divorcees.
The atrocities that took place in Europe during the Second World War were a major catalyst for moving away from this state-centred view of international relations. As Johannes Morsink notes in his meticulous historyof the drafting of the UDHR, the Holocaust was the single most important event that shaped its writing.
The UDHR recognises that ‘all human beings are born free and equal in dignity and rights’ regardless of their race, sex, national origin or other status. But did it go far enough? After all, the vast majority of the earth’s inhabitants are nonhuman. Just as individual humans are particularly vulnerable to the excesses of state and other forms of concentrated power, so too are animals particularly vulnerable to abuse at the hands of humans.
The tyrannical exercise of human power over the other animals is ubiquitous, whether it’s subjecting them to painful biomedical experiments, destroying their natural habitats, forcing them to perform in circuses and aquariums, or industrially rearing and exterminating them for food. Are we systematically violating the rights of animals when we treat them like this? Ought we take steps to rectify this with a Universal Declaration of Animal Rights?
The Upper Tribunal decision in of C&C v Governing Body [2018] UKUT 269 (AAC) has provided important clarification to the scope of the Equality Act 2010 in an education context.
A 13-year-old boy, L, was excluded for physical violence at school. L suffered from autism, anxiety and Pathological Demand Avoidance; it was common ground that the episodes of violence were as a result of these conditions.
It was also common ground that, but for the effect of Reg. 4(1)(c) Equality Act 2010 (Disability) Regulations 2010 (‘the 2010 Regulations’), L would meet the definition of having a ‘disability’ found at section 6 of the Equality Act 2010 (‘EA 2010’), as he had physical or mental impairment which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
But section 6 of the EA 2010 must be read in conjunction with the 2010 Regulations. The effect of Reg.4(1)(c) of the 2010 Regulations is to carve out from the definition of ‘disability’ those ‘impairments’ which manifest themselves in:
(a) a tendency to set fires,
(b) a tendency to steal,
(c) a tendency to physical or sexual abuse of other persons,
(d) exhibitionism, and
(e) voyeurism.
In C&C the school argued that L’s violent behaviour amounted to ‘a tendency to physical…abuse of other persons’ for the purposes of the 2010 Regulations, thereby removing the protection from discrimination that he would otherwise be afforded by the EA 2010.
The Law
Previous cases had decided that behaviour which amounted to a ‘tendency to physical…abuse’ was not protected under the Equality Act 2010 in the case of children with behavioural difficulties.
However, C&C reversed this line of authority.
The First Tier Tribunal had found, in line with the established case law, that L did not fulfil the definition of ‘disability’ under section 6 EA 2010 by virtue of the operation of Reg. 4(1)(c).
On appeal, Tribunal Judge Rowley was tasked with deciding whether the current interpretation of Reg. 4(1)(c) of the 2010 Regulations was compatible with Article 14 read with Article 2 of Protocol 1 (A2P1).
The Scottish Government sets itself apart from its UK counterpart in its approach to protecting human rights. The SNP vocally opposed proposals to withdraw the UK from the ECHR and repeal the Human Rights Act. An expert group appointed by the First Minister Nicola Sturgeon will report this year with recommendations on how Scotland “can continue to lead by example in human rights”, and appears to be considering incorporating a range of rights from international human rights law into the Scottish legal system.
In environmental rights however, the lack of progress is conspicuous. As David Hart QC explained, the Aarhus Convention aims to protect the right to live in an environment adequate to health and wellbeing – the foundation on which other human rights are built. It recognises the rights of NGOs and members of the public to access information, participate in decision-making, and access justice. These rights encourage citizens to get involved in environmental decision-making. Article 9 requires that NGOs and members of the public must be able to challenge situations where their Convention rights are denied or national environmental laws are broken. Critically, access to justice must be “not prohibitively expensive”.
2018 brings a new development. New protective expenses orders rules for environmental litigation in Scotland were created last week. This post examines these rules, and argues that they remain out of line with the Convention.
The issue in this case was whether the removal of a foreign national from the UK would breach their rights under Article 3 not to be subject to inhumane or degrading treatment where they are in receipt of medical treatment in the UK which is not available in their home country.
In 1997 the European Court of Human Rights (ECtHR) determined in D v UK(Application no. 30240/96) that, as the applicant was in the advanced stages of AIDS to the extent that he was reliant upon palliative care in the UK and would receive no comfort or moral support in his home country, his removal would constitute a breach of Article 3. This was noted to be a ‘very exceptional’ case.
The current leading domestic authority is N v Secretary of State for the Home Department [2005] UKHL 31. N was also diagnosed with AIDS but owing to the availability of treatment in the UK she was expected to live for decades; however, if returned to Uganda, where such treatment was not available, she would die within one to two years. Lord Hope set out the test for ‘very exceptional’ as follows:
For the circumstances to be […] ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying …” [my emphasis]
Therefore, although N would die much faster in Uganda, as she would not be subject to ‘acute suffering’ whilst dying there was no breach of Article 3. This was held to be the case even though it was accepted that N’s life would be significantly shortened [see Lord Nicholls at para 15]. The issue was declared to be not whether her death would follow removal but whether “there is care available […] to enable [her] to meet that fate with dignity” [Baroness Hale, para. 69]. In N’s case it was considered that such care was available. The Grand Chamber of the ECtHR approved this reasoning in N v UK(Application no. 26565/05).
In K & AM, R v Secretary of State for the Home Department [2018] EWHC 2951 Mostyn J was concerned with subsistence payments for victims of modern slavery. The case concerned whether the Home Office’s cut to payments made under this country’s internationally agreed obligations to provide support to victims of trafficking constituted a breach of the rights of the victims. The court gave judgment for the claimants, finding that the cut was unlawful.
As the international media has become full of whispers as to just where Asia Bibi might be offered asylum, discrimination has once again been to the forefront of legal bulletins at home. Most notably, the story of Rehana Popal’s treatment at the hands of solicitors who requested that she return her papers after their client demanded a ‘white, male barrister’, has made waves in the news. Whilst this runs entirely against the solicitors’ code of conduct and, indeed, the Equality Act 2010, Ms Popal, the English Bar’s only Afghan-born female barrister, has stated that this has not been the first occasion upon which she has been subjected to such discriminatory treatment. Continue reading →
The Supreme Court has unanimously allowed the appeal of Michael Darnley in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, holding that a hospital receptionist owed a duty of care to a patient at A&E, which was breached by providing him with incorrect information as to how long he was likely to have to wait before being seen or triaged.
The case raised questions as to the existence and scope of the duty of care owed by hospitals to patients who attend and are dealt with non-medical staff. The decision has potential implications for all those who are booked in to A&E even if no-one has professionally assessed their need for care.
In this guest article, Dr Linda Roland Danil argues that a new international agreement is needed to prevent us from sleepwalking into serious trouble.
In 2015, 196 Parties came together and agreed to the Paris Agreement, under which they pledged to limit global warming to 1.5 to 2 degrees Celsius above pre-industrial levels. But the problem is that the Paris Agreement does not contain quantified, legally-binding obligations for the reduction of emissions. It also has no enforcement mechanism, such as an international tribunal. Instead, countries prepare their own national emissions targets – so-called Intended Nationally Determined Contributions or INDC’s – and report to each other on how well they are doing to implement their targets.
The Paris Agreement was undoubtedly an achievement in the realm of international climate negotiations, and although the Trump administration has notoriously recently pledged to withdraw from the Agreement, a withdrawal which cannot take effect until late 2020. 196 Parties, at different stages of economic development, and within a conflicting political context, all agreed on the importance of tackling the threat of anthropogenic global warming.
However, the Paris Agreement’s targets are simply not being met, with the national pledges by the signatory Parties having recently been argued to bring about only a third of the reduction of emissions by 2030 that is required. Continue reading →
On 14th September 2018 the Court of Appeal allowed an appeal by a doctor against a finding that his fitness to practice was impaired by reason of dishonesty.
This case concerned professional disciplinary proceedings against the appellant, Dr Hemmay Raychaudhuri. A complaint had been made in relation to how the appellant had filled in a form to record the medical examination of a child patient. This complaint was referred to a Medical Practitioners Tribunal (MPT). Assessing the scope for misunderstanding between the appellant and other medical staff, the MPT upheld the charge of ‘misleading actions’ rather than ‘dishonest actions’. As such there was no impairment of his ability to practice as a doctor.
The General Medical Council (GMC), however, alleged dishonesty on the part of the appellant. The GMC appealed to the High Court in reliance on section 40A Medical Act 1983. This stipulates the conditions under which the General Council may challenge a decision of an MPT if it believes a disciplinary decision made under section 35D does not sufficiently protect the public.
In the High Court, Sweeney J followed the decision of the Divisional Court in General Medical Council v Jagjivan [2017] EWHC, which held that the High Court had jurisdiction to hear an appeal by the GMC against a ruling by an MPT. He substituted the MPT’s finding to declare that the appellant had in fact behaved dishonestly and that therefore his fitness to practice was impaired.
There were three grounds of appeal before the Court of Appeal.
The High Court has no jurisdiction under Section 40 to hear an appeal by the GMC against a finding by an MPT that a doctor’s fitness to practice is not impaired. This was an invitation to overrule Jagjivan;
The High Court was wrong to substitute a finding that he had behaved dishonestly, where the MPT had acquitted him of dishonesty;
Even if the conduct was dishonest, the High Court was wrong to find his fitness to practice was impaired and was wrong to remit the case to the MPT.
The Director of the SFO v ENRC [2018] EWCA Civ 2006 – read judgment
Eurasian Natural Resources Corp, the defendant to the Serious Fraud Office’s application to enforce notices seeking to compel the production of documents, has had a chequered history in the last 10 years since it came to the London market (in January 2014 it delisted and went private). In December 2010, a whistleblower alerted the company by email to serious allegations of corruption, fraud and bribery within its group.
After substantial internal enquiries and investigations on the part of ENRC and professionals instructed by it, accompanied by correspondence and meetings between the SFO and lawyers instructed by ENRC, in February 2016 the SFO issued a Part 8 claim against ENRC. This sought a declaration that documents in for specific categories were not “information or… Any document which ENRC would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court” within the meaning of section 2 (9) of the Criminal Justice Act 1987. The SFO’s pleaded case was that neither litigation privilege nor legal professional privilege attached to the documents in the first place, not that any privilege had been waived. Continue reading →
R (AR) v Chief Constable of Greater Manchester Police [2018] UKSC 47 – read judgment
The Supreme Court has given important guidance on the correct approach of the appellate courts to assessing proportionality under the ECHR. The main issue before the court was whether an Enhanced Criminal Record Certificate (“ECRC”) issued in respect of the appellant, AR, under s.113B of the Police Act 1997 is compatible with Article 8 of the Convention on Human Rights.
Background
AR was a married man with children, of good character, and a qualified teacher, and worked for a time as a taxi driver. It had been alleged that, in the early hours of 4 November 2009, he raped a 17 year old woman, who was a passenger in his taxi. AR’s defence was that there had never been sexual contact with the alleged victim. In January 2011 he was acquitted of rape by the Crown Court.
AR subsequently applied for an ECRC in connection with an application for a job as a lecturer. The police duly issued the ECRC which contained details of the rape charge for which AR had been acquitted. A second ECRC which also contained this information was later issued in respect of an application by AR to work as a private hire driver.
Having exhausted the various internal appeal mechanisms available to him, AR issued a claim for judicial review. Amongst other matters he argued that the inclusion in the ECRC of information concerning the rape charge and acquittal was procedurally unfair because it had been disclosed without consulting him. It was also said that the disclosure amounted to a substantive breach of Article 8. Continue reading →
The received wisdom, supported by all leading texts on coroner’s law is that in order for a Coroner or jury to return a verdict of suicide in an inquest, the fact that the deceased deliberately took his own life must be established beyond a reasonable doubt, or in other words, to the criminal standard of proof.
Jervis states:
At least since 1984 it has been consistently held in England that the standard of proof in suicide cases should be the same as in criminal prosecutions… although there is no crime involved and an inquest is not a criminal trial. The comparative difficulty in obtaining a conclusion of suicide may well mean that official statistics significantly underestimate the occurrence of suicide.
The Form 2 prescribed by the Rules for the purposes of recording the conclusion of the inquest itself specifies that the criminal standard of proof applies for unlawful killing and suicide conclusions. The Guidance issued by the Chief Coroner (at paragraph 56) says the same thing.
Maughan
In an important judgment of the Divisional Court in R (Maughan) v HM Senior Coroner Oxfordshire and others[2018] EWHC 1955 (Admin) that position has now changed. The Court, Leggatt LJ and Nicol J, has found that the standard of proof is the civil standard of proof, i.e. the balance of probabilities. There case may go as the Court gave permission to appeal.
This article was originally published by the UK Constitutional Law Association, and can be found here.
There is an old joke, in which a man is driving through the countryside, lost. He stops his car in a small village to ask a local for directions. The local responds by saying: ‘you want to get where? Oh, to get there, I wouldn’t start from here.’
It’s a joke my children wouldn’t get, from another era, from an age before satnav and Google maps. Perhaps it should be retired. But it remains of contemporary relevance at least as a way of understanding the recent judgment of Richard v BBC. This is because it highlights the issue of framing: the way one perceives an issue dictates, to some extent, the way one attempts to deal with it. Framing is well known in journalism, as the way a journalist perceives an event – frames it – influences the way she will report on it. It also can be helpful in law. The way an advocate persuades a tribunal to perceive an event – frames it – dictates, to some extent, the conclusion the tribunal will reach. Every advocate knows that to get to a particular destination, it’s important to get the judge or jury to start from the right place.
Reading the 454 paragraphs of Mann J’s clear prose in Richard v BBC, we are left with little doubt how he framed the case. A well-beloved celebrity, Sir Cliff Richard, was unfairly accused of a horrendous crime, and was investigated, as was only right, by the police. But the police told the BBC this private information, which they shouldn’t have done, because they were pressurised into doing so by the BBC. The BBC prepared a report, dispatched a helicopter to shoot video through Sir Cliff’s windows of policemen searching his flat, and then published this to the world. This harmed Sir Cliff, who sued the police for informing the BBC, and the BBC for informing the world. Justice was done to Sir Cliff when Mann J resolved the dilemmas with which he was presented in favour of Sir Cliff.
Indeed, Mann J seems to have resolved all the dilemmas with which he was faced in favour of Sir Cliff. Many of these findings might be challenged, and some are supported by stronger reasoning than others. The BBC has indicated that it is considering appealing. This blog concentrates on one finding that can be challenged, as it is one that potentially has the most impact on public interest journalism. This is Mann J’s conclusion in paragraph 248 that a person under police investigation has a prima faciereasonable expectation of privacy in respect of that fact. The blog argues that, while an understandable conclusion given Mann J’s framing of Sir Cliff’s case, this finding erects a significant and substantial hurdle for those undertaking public interest journalism. That is a problem.
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The Upper Tribunal decision in of 
The Scottish Government sets itself apart from its UK counterpart in its approach to protecting human rights. The SNP 
In the recent judgement of 
In a week when 
As the international media has become full of whispers as to just where Asia Bibi might be offered asylum, discrimination has once again been to the forefront of legal bulletins at home. Most notably, the story of Rehana Popal’s treatment at the hands of solicitors who requested that she return her papers after their client demanded a ‘white, male barrister’, has made waves in the news. Whilst this runs entirely against the solicitors’ code of conduct and, indeed, the Equality Act 2010, Ms Popal, the English Bar’s only Afghan-born female barrister, has stated that this has not been the first occasion upon which she has been subjected to such discriminatory treatment.
The Supreme Court has unanimously allowed the appeal of Michael Darnley in 
Today it was announced that the Intergovernmental Panel on Climate Change (IPCC) has published a special report on the impact of climate change 
Raychaudhuri v General Medical Council [2018] EWCA Civ 2027
The Director of the SFO v ENRC [2018] EWCA Civ 2006 – 
R (AR) v Chief Constable of Greater Manchester Police [2018] UKSC 47 – 
This article was originally published by the UK Constitutional Law Association, and 
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