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In this two-part article, Maya Sikand KC, Tom Stoate and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield.
The first part explored whether coroners should have jurisdiction to investigate stillbirths.
This second part seeks to answer the question: should foetuses ever be protected by a ‘derivative’ right to life?
For a brief introduction to Aisha Cleary’s case, please see Part 1.
Article 2 ECHR rights in utero
Article 2, encapsulating the right to life under the European Convention on Human Rights (‘ECHR’), does not provide temporal limitations on the right to life and does not define ‘everyone’ (‘toute personne’) whose life is protected by the Convention.[1] The European Court on Human Rights (‘ECtHR’) has left it to the margin of appreciation of Convention states to decide when life begins for the purposes of Article 2. In England and Wales, ‘Coroners do not have jurisdiction to conduct an investigation concerning a foetus or a stillborn child, as where there has not been an independent life, there has not legally been a death’.[2]
In this two-part article, Maya Sikand KC, Tom Stoate, and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield.
This first part seeks to answer the question: should coroners have jurisdiction to investigate stillbirths?
The second part will examine whether foetuses should enjoy Article 2 rights which do not conflict with the rights of the mother.
Rianna Cleary, who was 18 years old at the time, gave birth to Aisha Cleary alone in her cell in HMP Bronzefield, on the night of 26 September 2019, without medical or any other assistance. Ms Cleary’s two calls for help via the prison emergency intercom system in her cell were first ignored, then unanswered – despite there being a 24-hour nursing station on her wing in the prison. Terrified and in pain, without knowing what to do, Ms Cleary felt compelled to bite through her umbilical cord. Aisha’s birth was not discovered by prison staff until the next morning – after other prisoners raised their concerns – at which time Aisha was ‘not moving,had a tinge of blue on her lips, butwasstill warm’.[1] Unsuccessful resuscitation attempts were made, with an adult oxygen mask in the absence of any paediatric or neo-natal mask. Less than an hour later, paramedics confirmed that Aisha had died. The Senior Coroner for Surrey, Richard Travers, stated that Aisha ‘arrived into the world in the most harrowing of circumstances’.[2]
Following a month-long inquest, involving ten interested persons (‘IPs’) and more than 50 witnesses, including three expert witnesses, Mr Travers concluded that numerous causative failings contributed to Aisha’s death.
Why we should replace ‘revenge porn’ with ‘image based sexual abuse’ and reform the mens rea of the Criminal Justice and Courts Act 2015
The digital world is becoming an increasingly dominant part of daily life. This has been thrown into sharp relief by the current public health crisis, which has seen almost every facet of our lives move online; from socialising, to work, to healthcare, to dating and sex. However, regulation of the digital world is struggling to keep pace with technological change (see the UK Human Rights Blog’s technology section for commentary on this phenomenon). Lawmakers simply cannot keep abreast of the reforms necessary to protect victims from online criminality. One area in which Parliament has made some progress is the sharing of private sexual images, or ‘revenge porn’, as it has come to be known. This article will outline recent developments in the law around sharing of private sexual images; interrogate the terminology used in this area; and suggest reforms to the relevant legislation.
In 2014, the Crown Prosecution Service published guidelines on existing legislation, in an attempt to support convictions for the crime of sharing private sexual images without consent.[1] However, after mounting pressure from campaign groups, the Criminal Justice and Courts Act 2015 (‘the Act’) created the offence of ‘Disclosing private sexual photographs and films with intent to cause distress’, which is punishable by up to two years in prison.[2]
More recently, legislation around sharing private sexual images became the subject of a new campaign, seeking to make the act of threatening to share private sexual images a criminal offence. This campaign was supported by organisations such as Refuge, 44,615 of whose supporters wrote to government ministers requesting a change in the legislation.[3] A reality television star, Zara Mcdermott, added her voice to this campaign in a BBC documentary entitled ‘Zara McDermott: Revenge Porn’.[4] In the documentary, Ms McDermott recounts two instances of having private sexual images shared without her consent. The documentary also covers the harrowing story of Damilya Jossipalenya, who was at university in London when she jumped to her death from the window of her flat. Ms Jossipalenya’s suicide followed a campaign of harassment by her boyfriend, who had threatened to share a video of Ms Jossipalenya with her family in Kazakhstan. This segment of the documentary ends with Ms McDermott explaining why she believes the threat to share private sexual images can be equally as damaging as the act of sharing them.
Air pollution is particularly high in Bangladesh, the asylum seeker’s country of origin
On 18 December of last year, a judgment was handed down by the cour administrative d’appel à Bordeaux (the appeals court of the administrative court of Bordeaux) which, until quite recently, went under the international radar. In a landmark judgment, the Court ruled that the respondent, an asylum seeker from Bangladesh (‘Mr A’), could not be returned to his country of origin owing to two medical conditions: allergic asthma and sleep apnea. What was remarkable about this judgment was that it was the first time that a French court has taken pollution into account in a decision of this kind. The Court stated:
[Mr A] would be confronted upon arrival in his country of origin […] with a worsening of his respiratory disease because of the atmospheric pollution.
An article published by the Guardian brought the case to the attention of the British media, and the story has since been picked up by a number of national papers. This article will seek to shed light on the judgment, which is only available in French, and the legal circumstances leading to this groundbreaking decision.
The exterior of the European Court of Human Rights in Strasbourg
In this two-part article, Ruby Peacock,an aspiring barrister and currently a legal and policy intern at the Legal Resources Centre in Cape Town, examines the history of medical claims brought under Article 3 of the European Convention on Human Rights.
The first part analysed the history of how such cases have been decided, with particular focus on claims based on psychiatric illness.This second part will examine the recent developments in the law and what these may mean for the future.
The author is very grateful to Greg Ó Ceallaigh and Sapan Maini-Thompson for their insights and comments when preparing this article.
Paposhvili v Belgium
By the time Paposhvili v Belgium came to be considered by the Grand Chamber, the applicant had sadly passed away. Before his death, he faced a proposed removal to Georgia. However, he had been suffering from several medical conditions, the most serious of which was chronic lymphocytic leukaemia. Crucially, the applicant accepted that, because his medical conditions was stable, he did not meet the D criteria. Intervening, the Human Rights Centre of Ghent University argued that the case presented a unique opportunity to ‘depart from the excessively restrictive approach adopted by the Court in N’ (at para 165). In a unanimous verdict, the Court seized upon this opportunity.
As outlined in Jonathan Metzer’s article, Paposhvili expanded the circumstances in which a person could resist removal to a third country on Article 3 grounds to include:
Courtroom of the European Court of Human Rights in Strasbourg
In this two-part article, Ruby Peacock,an aspiring barrister and currently a legal and policy intern at the Legal Resources Centre in Cape Town, examines the history of medical claims brought under Article 3 of the European Convention on Human Rights.
The first part analyses the history of how such cases have been decided, with particular focus on claims based on psychiatric illness.The second part will examine the recent developments in the law and what these may mean for the future.
In a career defined as much by powerful dissenting judgments as by winning oral arguments, Ruth Bader Ginsburg blazed a trail particularly for women, but also minorities and the LGBTQI+ community, to receive equal treatment under the law. This article will follow that trail, from her early women’s rights arguments in the 1970s to her powerful dissenting judgments, which earned her the affectionate title of ‘the Notorious RBG’ in later life.
To commemorate her death last Friday at 87 years of age, this extended article will look at her extraordinary professional life.
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