Author: Daniel Sokol

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What’s so wrong with incest? The case of Stübing v Germany

Photo credit: cas.sk

Stübing v Germany (no. 43547/08), 12 April 2012 – Read judgment 

The European Court of Human Rights (fifth section) has ruled unanimously that Germany did not violate Article 8 of the European Convention on Human Rights (right to respect for private and family life) by convicting Patrick Stübing of incest

Professor Jonathan Haidt, a well-known social psychologist, presented this scenario as part of a study:

Julie and Mark, who are brother and sister, are traveling together in France. They are both on summer vacation from college. One night they are staying alone in a cabin near the beach. They decide that it would be interesting and fun if they tried making love. At very least it would be a new experience for each of them. Julie was already taking birth control pills, but Mark uses a condom too, just to be safe. They both enjoy it, but they decide not to do it again. They keep that night as a special secret between them, which makes them feel even closer to each other.  So what do you think about this?  Was it wrong for them to have sex?

Most people answered with a resounding yes, supporting their “yuck” response with reasons.  Yet, Professor Haidt noticed that many respondents ignored elements of the story.  Continue reading →

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Can a homosexual person adopt his or her partner’s child? The case of Gas and Dubois v France.

Gas and Dubois v France (2012) (application no 25951/07).  Read judgment (in French).

The French government did not violate articles 8 (right to respect for private and family life) and 14 ECHR (right not to be discriminated against in one’s enjoyment of Convention rights and freedoms) in not allowing one partner in a homosexual couple to adopt the child of the other.  And the Daily Mail goes off on another frolic of its own.

Ms Valerie Gas and Ms Nathalie Dubois, now in their 50s, lived together as a lesbian couple, obtaining the French equivalent of a civil partnership (the pacte civil de solidarité, or PACS) in 2002.  Ms Dubois, through artificial insemination in Belgium using an anonymous sperm donor, gave birth to a girl in September 2000.  Together, they took care of the child and, in 2006 , Ms Gas, applied to adopt the girl with the consent of her partner, Ms Dubois.  Continue reading →

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Are lawyers in right-to-die cases breaking the law?

Debbie Purdy

Philip Havers QC of 1 Crown Office Row is representing Martin in the judicial review proceedings.  He is not the author of this post.

Albert Camus famously wrote: ‘there is but one truly serious philosophical problem and that is suicide.’  However profound a philosophical problem, the question of suicide or, more precisely, assisted suicide is proving quite a legal conundrum.

It is a well-known fact that, at present, it is lawful in England and Wales to commit (or to attempt to commit) suicide but unlawful to help someone else to do so.  Encouraging or assisting suicide is an offence under section 2 of the Suicide Act 1961, carrying a maximum penalty of 14 years’ imprisonment.  On a literal reading of the Act, even obtaining information about euthanasia for someone who plans to commit suicide could constitute a breach of section 2.

Continue reading →

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A step closer to the legalisation of assisted suicide?

Debby Purdy and husband

The Commission on Assisted Dying, set up in September 2010 and chaired by former Lord Chancellor Charles Falconer, has issued its monumental report on assisted dying in England and Wales.

The Commission was funded by two supporters of assisted suicide, author Terry Pratchett and businessman Bernard Lewis, and despite reassurances that the running and outcome of the Commission were independent, some individuals and groups opposed to the practice regrettably refused to give evidence to the Commission.  Still, the range and quantity of the evidence, which included evidence gathered from international research visits, qualitative interviews and focus groups, commissioned papers, and seminars, is impressive and can be read and watched here.

Continue reading →

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Reclaiming the fruits of crime will not be made harder, rules Supreme Court

Gale & Anor v Serious Organised Crime Agency [2011] UKSC 49 – Read judgment

The Supreme Court has ruled that applying the civil standard of proof (‘balance of probabilities’) to confiscation proceedings does not breach Article 6 of the European Convention on Human Rights (right to fair trial).

David Gale and his ex-wife Teresa were accused of drug trafficking, money laundering and tax evasion in the UK, Spain, Portugal and elsewhere. They were never convicted. The Serious Organised Crime Agency (SOCA), whose job it is to identify and recover the fruits of criminal activity, nonetheless sought to recover these fruits from David Gale and Teresa (‘the appellants’) by recovering property worth about £2 million. SOCA obtained an order to do so under Part 5 of the Proceeds of Crime Act 2002 (POCA).

Continue reading →

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What is a life worth living? Further analysis of “M” – Daniel Sokol

W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) and others [2011] EWHC 2443 (Fam). Read judgment.

In the first case of its kind, the Court of Protection ruled that withdrawing artificial nutrition and hydration from a person in a minimally conscious state was not, in the circumstances, in that person’s best interests. The Court also made general observations for future cases.

See our earlier posts here and here for a summary of the facts of this case.

The judgment

Since M had left no legally valid advance decision expressing her wishes to forego life-sustaining treatment, the court had to determine whether it would be in M’s best interests to withdraw artificial nutrition and hydration (ANH). Continue reading →

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Detention of mentally ill foreign national violated Convention rights

R (on the application of S) v Secretary of State for the Home Department [2011] EWHC 2120 (Admin) – read judgment

The High Court has found that the Secretary of State unlawfully detained a mentally ill foreign national who was awaiting deportation.  By failing to notify the claimant of the deportation order in good time or to follow the Home Office’s own published policies on the detention of mentally ill persons, and by detaining the claimant in degrading conditions, the Secretary of State had breached Article 3 (prohibition of inhuman and degrading treatment) and Article 5 (right to liberty and security of person) of the Convention. Continue reading →