By: Caroline Cross


Immigration removal and an Article 2 inquest

29 April 2021 by

R (Lawal) v Secretary of State for the Home Department (2021), Upper Tribunal (Immigration and Asylum Chamber), Unreported, JR/626/2020 (V) read judgment

The death of an immigration detainee, as with all prisoners, is rightly subject to legal scrutiny. This is because detainees are completely under the state’s control. Article 2 ECHR requires that the state carry out an effective investigation into all deaths in detention where there is a reasonable suspicion that the death was unnatural. A coroner is required to hold an inquest into all deaths in custody, and specifically a jury inquest where there is reason to suspect the death is violent or unnatural.

In this case, a two-judge panel of the Upper Tribunal (President of the Upper Tribunal, Mr Justice Lane, and Upper Tribunal Judge Canavan) found that the respondent Home Secretary had breached her Article 2 procedural obligations in respect of deaths in immigration detention. In particular, she had failed to ensure that crucial witness evidence was secured for use at an inquest and had failed to halt the deportation of a relevant witness.

The facts

Mr Oscar Lucky Okwurime (‘OO’) was a Nigerian national. On 12 September 2019 he was found dead in his room at Harmondsworth Immigration Removal Centre, aged 36. The applicant in these proceedings, Ahmed Lawal, was also a Nigerian national and a good friend of the deceased. He was detained on the same wing at the time of the death.


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Testing the boundaries of causation in mesothelioma deaths

22 April 2021 by

Asbestos fibres viewed under an electron microscope. Image: Flickr

Wandsworth BC v HMC for Inner West London [2021] EWHC 801 (Admin) — read judgment

Mesothelioma deaths arising from asbestos regularly come before coroners. This case, though, is of particular interest because it tests the boundaries of causation in relation to mesothelioma deaths – what evidence is needed to show that asbestos exposure led to that specific death?

The issue before the court was whether the coroner was entitled to conclude that it was probable, as opposed to merely possible, that the deceased had developed the mesothelioma that caused and led to her death as a result of exposure to asbestos while living in the council’s property.

It was concluded that in the circumstances, the evidence had been insufficient and the relevant findings in the Record of Inquest were altered.

Facts

Mrs Johns and her daughter moved into the council’s flat at 8 Eliot Court in July 1996. Twelve years previously, in 1984, asbestos had been detected in the flat. In October 2003 the council instructed contractors to remove the asbestos. While the work was being done, Mrs Johns and her daughter moved out. However, during the works a vacuum cleaner used by the contractors ‘exploded’, soaking a number of pieces of furniture, the carpet and personal possessions with a polymeric substance. On their return to the flat, they discovered the scene, as described by her daughter: “It looked as if something had happened whereby what [the vacuum] was meant to do was to vacuum dust up but what it had in fact done is blown it out…”. She could not recall whether her mother cleaned up the mess, but assumed she had. The contractors and council settled her claim for the damage to her possessions.

Mrs Johns lived at 8 Eliot Court until June 2017 before moving to a new address. In June 2018 she attended her GP, complaining of backache. Her condition deteriorated rapidly, and in July 2018 she was diagnosed with metastatic adenocarcinoma. She died on 27 August 2018 aged 51. The consultant pathologist concluded that she had died of bronchopneumonia, which had resulted from malignant mesothelioma, a form of cancer that affects the lining of the lungs.


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Application for fresh inquest refused

6 April 2021 by

Farrell v HMC for North East Hampshire [2021] EWHC 778 (Admin)

Applying for a fresh inquest is not straightforward. First, the bereaved have to get permission from the Attorney General. Only once that authority has been granted will they be allowed to apply to the High Court to reopen the inquest (section 13 of the Coroners Act 1988). Often cases are reopened because new evidence has come to light or there has been insufficiency of inquiry, for example where a person is found guilty of the murder of the deceased or new scientific data is provided.[1] Further, it has to be necessary or desirable in the interests of justice that an investigation be (re)opened.

This case does not provide any new legal principles, but it is a strong statement about the importance of testing the evidence before granting the fiat: inquests should not be reopened just to allay the concerns of family members.

(1)   Facts and Judgment

This case has a tragic backstory brought about by a complete breakdown of relations between a mother and her daughter-in-law.

Ray Farrell died on 24 October 2016 aged 53 as a result of malignant mesothelioma, which he developed following asbestos exposure working as a mate’s fitter. He had settled a civil claim with his former employer prior to his death. The documentary-only inquest recorded the cause of death as mesothelioma. There was no post mortem or toxicology, as the histology of mesothelioma was considered sufficient.

Concerns were first raised by his daughter, Kelly, who had not been informed of her father’s illness and therefore was shocked to discover his illness and death. Her suspicions were raised by two matters: two carrier bags full of medicines awaiting disposal following his death and a response from the Senior Coroner to her email that there were no toxicology or blood samples because Mr Farrell’s wife, and her stepmother, was very anxious to avoid a post mortem. In fact, it was Mr Farrell who did not want a post mortem.

Her concerns were then taken up by Ray’s mother, Mrs Farrell. She applied for a fresh inquest on the basis that Mr Farrell’s wife, Amanda Burden, hastened his death by deliberately giving him inappropriate medication. Ms Burden and Mr Farrell had been married in February 2016, although they had been in a relationship for eight years. She was, Mrs Farrell alleged, motivated by financial gain. Mrs Farrell applied with the fiat of the Attorney General under s.13 of the Coroners Act 1988 for the quashing of the original inquest due to a lack of appropriate investigation. The Senior Coroner supported the fiat, although doubted whether the outcome would be any different.


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Can a clinical negligence trial be heard remotely?

9 June 2020 by

SC (a child, suing by her mother and litigation friend, AC) v University Hospital Southampton NHS Foundation Trust [2020] EWHC 1445 (QB)

Since lockdown the courts (and legal representatives) have been striving to hold remote hearings where possible. This had led to a flurry of new guidance (see for example CPR section AA Guidance for Queen’s Bench Division Court Users) — and the ability to view bookshelves in the studies of judges and legal representatives.

This interesting case considers the fairness of proceeding with a clinical negligence claim remotely. In SC, an application was made to adjourn a clinical negligence trial on the basis that it would be impossible for a hearing to take place in court and a remote hearing would be unfair. Mr Justice Johnson dismissed the application, concluding that the hearing could proceed in court and, if a remote hearing was required, then it could proceed in a manner that would be fair.


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Is a school responsible for assault on foreign expedition?

26 March 2012 by

XVW and YZA v Gravesend Grammar School for Girls and Adventure Lifesigns PLC [2012] EWHC 575 (QB) – read judgment

In 2005 a group of schoolgirls were taken on a school trip to Belize. While working on a resort, three girls, aged between 15 and 17, were violently raped by the manager of the site.

The question before the High Court was this: were the school or travel company responsible for the actions of someone they had not employed, abroad, on a school expedition where decisions had to be made about unforeseen contingencies when the party had arrived at their destination?

Background facts

The school had arranged an expedition through the travel company ‘ALS’. The twelve pupils were accompanied by a teacher and two experienced employees of the travel company. The group initially arrived in Mexico but could not proceed with the itinerary because of a hurricane. The teacher and travel guides, in looking for alternative itineraries, were recommended a project called Maya Walks, run by Jimmy Juan and his son Aaron. It was agreed that the group would help construct buildings at the farm resort owned by Jimmy and Aaron and in exchange they received free accommodation.
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Claim fails against Belfast police on protection of school walk from violence

15 December 2010 by

PF and EF v UK (Application No. 28326/09) – Read judgment

The European Court of Human Rights has dismissed an application brought against the police in Northern Ireland by a mother and her daughter who argued the police had failed to take sufficient action to protect them from loyalist riots on their route to primary school.

The court held that the police must be afforded a degree of discretion in taking operational decisions, and that in this case the police took all “reasonable steps” to protect the applicants.

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Was local authority responsible for harassment campaign against vulnerable adults?

25 November 2010 by

Application no. 32666/10 by X, Y & Z against the UK, lodged on 8 June 2010 – Read statement of facts

In a potentially landmark case, the European Court has been asked to determine the extent to which a local authority is under a duty prevent a breach of a person’s rights under Articles 3 (against inhuman and degrading treatment) and 8 (home and family life) in a case where two people with learning difficulties were violently harassed and threatened by a group of teenage youths.

The case concerns vulnerable adults who rely on social services. X and Y, who are married, both have learning difficulties. Z is the mother of X, and acted as a carer and advocate for both X and Y. X and Y lived in Hounslow Borough with Y’s two young children. Three local authority departments were involved with X and Y’s family, providing for their housing needs and allocating social workers for both the adults and children. Over a period from August 1999 until November 2000, X and Y were continually harassed and threatened by a group of teenage youths, who used the flat as a general ‘doss house’, dumping stolen goods, having sex and staying overnight.

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Iraq not violent enough to prevent asylum seekers being sent back

5 October 2010 by

HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) – Read judgment

In a long-awaited decision on country guidance on Iraq, the Upper Tribunal (Immigration and Asylum Chamber) has held that the degree of indiscriminate violence in Iraq is not so high that the appellants were entitled to subsidiary protection under Article 15(c) Qualification Directive.

However, the IAT indicated that, should the degree of violence become unacceptably high, Article 15(c) might be engaged. The Upper Tribunal also used the opportunity to provide general advice as to how to approach country guidance cases.

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Contraception, capacity and coercion: when does a woman lack capacity to decide whether to use contraceptive treatment?

25 August 2010 by

A Local Authority v Mrs A, by her Litigation Friend, the Official Solicitor, and Mr A [2010] EWHC 1549 (Fam) – Read judgment

In the first case of its kind, the court was asked to consider whether a young married woman lacks capacity to decide whether to use contraception, and whether it would be in her interests to be required to receive it.

Mrs A was a 29-year-old woman who suffered from serious learning difficulties, which put her intellectual functioning at approximately 0.1% of adults her age. In 2004 she gave birth to a daughter, and in 2005 she had a son. Both children were removed from her at birth because she did not have the capacity to take care of them.

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When is a human rights claim a human rights claim?

12 August 2010 by

Shirin Jisha v The Secretary of State for the Home Department [2010] EWHC 2043 (Admin) – Read judgment

When is a human rights claim a human rights claim in an immigration context? The High Court has recently considered this question in the case of a Bangladeshi citizen who had her visa cancelled when returning from a trip abroad.

This case related to the proper meaning of section 113(1) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State had argued that the claimant’s claim was not a “human rights claim” because the claim was not made “at a place designated by the defendant” but served as part of her appeal to the Asylum and Immigration Tribunal against the defendant’s refusal to grant her leave to enter. It was held that the claim was a “human rights claim” within the terms of section 113(1).

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