Media By: Matthew Hill


Independence and public inquiries – why you need it and how you can lose it

9 November 2017 by

Independence and public inquiries – why you need it and how you can lose it

 There is a scene in “Yes Minister” in which the beleaguered Jim Hacker is contemplating a public inquiry into the latest failing of his department.  He warily suggests to his Permanent Secretary, Sir Humphrey Appleby, that perhaps the judge chairing the inquiry could be leant on to come up with a favourable outcome.  Sir Humphrey is outraged at this violation of the separation of powers.  Surely the Minister wasn’t serious?  After all, wouldn’t it be better to appoint a judge who didn’t need to be leant on in the first place?

Jim Duffy’s recent post  on the Contaminated Blood Inquiry – and the importance of an inquiry being independent and being seen to be independent – brought this encounter to mind.  The ever more frequent calls for a ‘judge-led inquiry’ must be a source of both pride and concern to the judiciary.  Pride as ‘judge-led’ is a synonym for a forensic, thorough and above all independent tribunal to assess the matter in question.  We will come to the concern later.

Times have changed since the careers of Hacker and Sir Humphrey.  The Inquiries Act 2005 contains provisions intended to secure and display the suitability and impartiality of those charged with conducting a statutory inquiry (see in particular s.8 and 9).  When it comes to appointing a judge, the Act provides that the minister must consult with the Lord Chief Justice or another relevant senior member of the judiciary (s.10).  Sir Humphrey would be disappointed.
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Abortion, mental incapacity and prior intentions: Court of Protection Clarifies the law

26 February 2016 by

logoAn NHS Trust v CS (By Her Litigation Friend, the Official Solicitor) ] EWCOP Read the  judgement.

The Court of Protection does the work of Solomon on a daily basis. Matters of life and death are brought before it, and with them come a mass of conflicting rights, overlapping statutes, and an array of case law from which arguments can be drawn. At the end of it, an individual judge must make a stark decision, which may have the most profound impact on another human being. One of those charged with making such decisions once divided the advocates who appeared before him into those who complicate and those who clarify. There is no surprise as to which he preferred.

Baker J’s judgment in this disturbing case will boost the cause of the clarifiers. CS has two children and, before Christmas, became pregnant by her then partner. It was a relationship that, it is alleged, became “characterised by domestic violence” (a phrase that it somehow more chilling for its judicial restraint). CS told friends and families that, in the circumstances, she intended to terminate the pregnancy. Days later she was, allegedly, assaulted by her partner. She was hospitalised with serious head injuries comprising fractures, intracranial bleeding and brain damage. She has post-traumatic amnesia and her behaviour has become extremely unsettled, marked by agitation, restlessness and disruptive acts. Her prognosis is uncertain.

The Trust treating her brought an application to the Court, seeking an urgent order to allow them to perform a surgical abortion. The urgency arose because the window of time during which such a procedure could be performed was closing. With the urgency came a plethora of issues. CS’s condition may improve in the future, but by then it could be too late to terminate the pregnancy. In those circumstances, what weight should be given to the evidence from CS family and friends of her prior intention to have a termination? How should that be balanced against her current wishes, insofar as they can be ascertained? What significance should be attached to the fact that she had previously had a termination? And what, if any, attention should be paid to the views of her partner, now arrested and remanded in custody?
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No article 2 inquest over 14-year-old overdose death, despite failings

14 November 2012 by

Methadone

Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors [2012] EWHC 2768 (Admin) – read judgment

The High Court – including the new Chief Coroner – has held that the enhanced investigative duty under Article 2, the right to life, is not engaged in an inquest into the death of a 14 year old boy, despite “many missed opportunities” for intervention by social services being identified.  

Another sad case on when and how the enhanced investigative duty under Article 2 ECHR is engaged. EB, a troubled 14 year old, died of a methadone overdose in November 2009.  He was known to the claimant’s social services department, who were the subject of criticism in a serious case review following his death.  The review found that there had been “many missed opportunities” to intervene, but felt that:  “It cannot be concluded that a different approach … would have prevented [EB]’s death, but there is a possibility that there may have been a different outcome.”  The council have since apologised unreservedly to the family.

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No public inquiry into alleged 1948 massacre by British troops, yet

21 September 2012 by

Communist prisoners held during the Malaya emergency Photograph: Jack Birns/Time & Life Pictures

Chong Nyok Keyu and ors v Secretary of State for Foreign and Commonwealth Affairs and another [2012]  EWHC 2445 (Admin), read judgment

Although the High Court has rejected an attempt to force the Government to hold a public inquiry into an alleged massacre of unarmed civilians by British troops in 1948, the case represents a further example of the use of the Courts to redress historical grievances.

There are two German words for dealing with the traumatic recent past, neither of which has a direct equivalent in English.  This linguistic quirk reflects history and national self-identity.  The defeats of the Kaiser, the Nazis and the GDR Communists led to national introspection in Germany, whereas the United Kingdom, on the winning side in each of the those three struggles, evaded such soul-searching.  The post-war decline was relatively gentle and easy to fit in to the national myth of historical continuity.  An Empire absent-mindedly acquired was considered to be the subject of an orderly and benevolent liquidation, with lasting benefits of railways and the rule of law left to the inheritors.

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From County Court Strike Out to Strasbourg Success

30 March 2012 by

Reynolds v United Kingdom [2012] ECHR 437 – read judgment

What – if anything – can a claimant do when she suspects that the domestic law is not only out of kilter with Strasbourg jurisprudence but is also denying her even an opportunity to bring a claim? Taking arms against a whole legal system may be an heroic ideal, but the mundane reality is a strike out under CPR rule 3.4 by a district judge in the County Court. It is a long way from there to the European Court of Human Rights.

This was the position in which Patricia Reynolds and her daughter Catherine King found themselves following the sad death of (respectively) their son and brother. David Reynolds suffered from schizophrenia. On 16 March 2005 he contacted his NHS Care Co-ordinator and told him that he was hearing voices telling him to kill himself. There were no beds available in the local psychiatric unit, so Mr Reynolds was placed in a Council run intensive support unit. His room was on the sixth floor and at about 10.30 that night Mr Reynolds broke his (non-reinforced) window and fell to his death.
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Analysis | Rabone and the rights to life of voluntary mental health patients – Part 2/2

14 February 2012 by

This is the second of two blogs on the recent Supreme Court case of Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 . Part 1 is here.

In my previous blog on the Supreme Court’s judgment in Rabone I discussed the central feature of the case, the extension of the operational duty on the state to protect specific individuals from threats to their life, including suicide. Here, I consider the other elements of the case that Melanie Rabone’s parents had to establish in order to succeed in their claim for damages under the Human Rights Act 1998 (“HRA”).

Existence of the operational duty in Melanie’s case

Having established that the operational duty could be applied in Melanie’s case, her parents then had to establish, on the facts, that it was – by showing that there was a “real and immediate” threat to her life from which she should have been protected. Ever since the notion of an operational duty was first enunciated in Osman v United Kingdom (2000) 29 EHRR 245, it has become something of a judicial mantra that the threshold for establishing a “real and immediate” threat was high (see for example Re Officer L [2007] UKHL 36, and Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681 [41] and [66],). There are good reasons for not imposing the operational duty lightly, given the enormous pressures and complexities involved in running police, prison and mental health services for the community as a whole. However, an overly-stringent test risked making the operational duty an obligation that was more hypothetical than real.

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Analysis | Rabone and the rights to life of voluntary mental health patients – Part 1/2

12 February 2012 by

Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 – Read judgment  (On appeal from [2010] EWCA Civ 698  and [2009] EWHC 1827 )

At first sight, Article 2 – the ‘right to life’ – seems to be a prohibition on extra-judicial executions and state-sponsored death squads. It does, of course have a role to play in that respect (and one that is not limited to those countries whose signature of the Convention is viewed with scepticism from Western Europe).

But through a combination of logic, inventive legal argument and what can either be characterised as the incremental development of a new area of law, or the expansionist tendencies of Strasbourg judges, the scope of Article 2 has broadened significantly, and can be cited in cases concerning prison administration and coronial procedural law.

In Rabone, the Supreme Court extended the obligations that the Article places on the state and its servants still further, beyond even the existing decisions from Strasbourg. They held that – in the specific circumstances of this tragic case – an NHS Trust had violated the positive duty that it had, under Article 2, to protect a voluntary patient from the risk of suicide.

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Does “bringing rights home” mean bringing problems home too?

13 June 2011 by

McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)- Read judgment

The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?

The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length.  The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.

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The Redfern Inquiry: the latest investigation into the removal and retention of human tissue

31 December 2010 by

November saw the publication of the report of the Redfern Inquiry into human tissue analysis in UK nuclear facilities (read the report, here).

The inquiry was the latest in a number of investigations looking at the post mortem removal, retention and disposal of human body parts by medical and other bodies, and the extent to which the families of the deceased knew of and consented to such practices. The Inquiry chairman, Michael Redfern QC, also chaired the Royal Liverpool Children’s Hospital (Alder Hay) Inquiry.

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Protecting child claimants from “fortune hunters and thieves”

11 November 2010 by

UpdatedJXF (a child) v York Hospitals NHS Foundation Trust [2010] EWHC 2800 (QB) – Read judgment

Mr Justice Tugendhat has held that the High Court should withhold the identity of a child claimant when approving the settlement of a clinical negligence case.  The decision represents a restatement of the orthodox principle that cases should be heard in public and reported without restrictions, and that anonymity orders should only be granted after careful scrutiny.

His reason for coming to this particular decision was that revealing the name of the claimant would “make him vulnerable to losing the [settlement] money to fortune hunters or thieves.”

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NHS must treat patients despite their personal injury settlements

10 November 2010 by

R (Booker) v NHS Oldham and Direct Line Insurance PLC [2010] EWHC 2593 (Admin)- read judgment

The High Court has held that where a claimant agrees a damages settlement that includes an indemnity to fund private nursing care should existing NHS provision be withdrawn, it was unlawful for a primary care trust to cease its funding of the claimant’s care on the basis that her needs would be met through the settlement.

The claimant, B, was a tetraplegic who had sustained her injuries in a road traffic accident. She had received care from the defendant NHS trust (“the Trust”) over a number of years, and there was no dispute that her medical needs made her eligible for future care. In October 2009, B’s personal injury case was settled on the basis of both a lump sum and periodical payments, the latter due to commence from 15 December 2011. In respect of the period between the settlement date and the first periodical payment, a series of “safety net undertakings” were given by both sides in the litigation, and by DLI, the insurer of the injury claim defendant. These were to the effect that B would use her best endeavours to maintain the NHS funded care that she was receiving, but, should it nonetheless be withdrawn, DLI would indemnify B against the cost of providing replacement care. In June 2010, the Trust informed B that it intended to withdraw its provision of care from her with effect from the autumn, on the basis that B had elected to receive private care and hence no longer required NHS services. B sought judicial review of this decision.

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Courts reluctant to intervene over care for elderly and disabled

2 November 2010 by

Updated | R (McDonald) v Royal Borough of Kensington and Chelsea, [2010] EWCA Civ 1109 – read judgment

The Court of Appeal has held that a local authority was entitled to reduce the care package provided to one of its resident following a re-assessment of her needs, even though this had the effect of forcing her, against her wishes, to use incontinence pads and/or absorbent sheets at night.

In doing so, the authority did not breach Article 8 ECHR (right to privacy and family life), or the relevant disability discrimination legislation. The judgment suggests that the courts will only intervene in disputes about the level of care being provided by local authorities in limited circumstances, something that may be significant in an environment of public spending cuts.

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When, and when not, to prosecute victims of human trafficking

1 November 2010 by

R v M(L) and others [2010] EWCA Crim 2327; [2010] WLR(D) 266 – Read judgment

The Court of Appeal (Criminal Division) has provided further guidance to prosecutors on whether or not they should bring charges against victims of human trafficking who go on to commit crimes. In the same judgment, the Court considered the extent of the obligation on the police to refer such victims to specialist agencies.

The state has a number of duties to victims of human trafficking deriving from the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No 197).

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Gurkha defeat in claim for equal pension rights

18 October 2010 by

No victory this time

R (British Gurkha Welfare Society and ors) v Ministry of Defence [2010] EWCA Civ 1098 – read judgment

The Court of Appeal has rejected a fresh attempt, based on Article 14 of the European Convention on Human rights (anti-discrimination), to obtain equal pension rights for Gurkhas who served in the British Army before 1997.

The long-running campaign for Gurkha rights has been highly publicised and successful, but it has not ensured equality of treatment in respect of pensions. The MoD continues to calculate  accrued pension rights at a lower rates for Gurkhas than for other soldiers in respect of service performed before 1997, the date on which the majority of Gurkhas ceased to be based in Hong Kong and were instead moved to the UK.

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