By: Rosalind English


Targets for reduction in sewage outflow not unlawful, says High Court

28 September 2023 by

The King (on the application of Wildfish Conservation v Secretary of State for the Environment, Food and Rural Affairs and the Environment Agency (Defendant) and the Water Services Regulation Authority (Interested Parties) [2023] EWHC 2285 (Admin)

In 2022, there were over three hundred thousand incidents of overflow into coastal waters, freshwater rivers and estuaries from sewerage works in the UK, following heavy rainfall. The most common cause of the overflows studied was rainwater entering sewers with insufficient capacity.

These proceedings were brought in regard to the publication of a Plan regarding setting out specific targets for water companies, regulators and the Government “to work towards the long-term ambition of eliminating harm from storm overflows”. These targets are compliance with existing statutory obligations, including conditions in permits issued by the Environment Agency.

The Plan sets three targets: that water and sewerage companies will by 2050 only be allowed to discharge from a storm overflow where there would be no local adverse ecological effect; the second target is to protect public health in designated bathing waters: water and sewerage companies must by 2035 significantly reduce harmful pathogens from overflows either by carrying out disinfection or by reducing the frequency of discharges; the third, a backstop target for 2050, which operates in addition to the first two targets: by 2050 storm overflows will not be permitted to discharge above an average of 10 heavy rainfall events a year.

The Marine Conservation Society, an oyster growing company and an individual representing the public interest also challenged the legality of the Plan. The Environment Agency and Ofwat were interested parties.

Factual Background

In 2020 the sewerage network was under pressure from a growing population, increased run-off from urbanisation and heavy rainfall. It was acknowledged that the cause of overflow was the lack of capacity in the current sewer network and that had to be tackled. The government and Ofwat recognised that that water infrastructure had not kept pace with developmental growth over decades.

In the face of this, officials and ministers started formulating policy targets which would require improvements going beyond those which could satisfy a cost-benefit test(the so-called and therefore be required under regs.4 and 5 of the 1994 Regulations (BTKNEEC: see below.)

The new statutory plan that the Secretary of State had to produce was seen as a means to set specific, time-bound objectives which would drive widespread change on storm overflows across the country. But officials advised that the target should seek to reduce discharges significantly rather than eliminate them altogether, because of the costs involved and the small level of additional benefit generated.


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Best of Law Pod 2023 so far

19 September 2023 by

In Episode 189 presenters Rosalind English and Lucy McCann reprise some of the leading episodes of Law Pod UK this year, ranging from the potential impact of AI on the legal professions, to the problem of Deprivation of Liberty Orders for children in the UK, given the severe lack of regulated accommodation available for the family courts to identify.

For a reminder and a refresher of the wide spectrum of subjects we cover on this series, dive in, learn and enjoy.

Law Pod UK Ep.188: Vulnerable witnesses: Communication in the Family Courts

30 August 2023 by

Listen to Family law expert Richard Ager talk to Melissa Patidar about her intermediary service company, Comunicourt, which provides communication support between lawyers and witnesses in remote and face to face hearings in family court proceedings. They discuss parties with vulnerabilities, qualifications and role of an intermediary, and how lawyers should aim to work with them.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FMListenNotesPodbeaniHeartRadio PublicDeezer or wherever you listen to your podcasts.

Please remember to rate and review us if you like what you hear.

Law Pod UK latest: Do the police owe potential victims a duty to warn of harm?

5 July 2023 by

Traditionally, the courts have been extremely reluctant to impose a positive duty of care on the police to protect or warn members of the public who may be potential victims of crime. This sort of liability, it is thought, would lead to defensive policing.

In a leading authority on this issue, Hill v Chief Constable of North Yorkshire Police (the Peter Sutcliffe case 1989), the House of Lords said that the imposition of a duty of care to individual members of the public would be detrimental.

“A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime”.

Only in exceptional cases would a remedy sounding in damages be granted to a victim or their family. Now that has all been changed by a recent decision from the High Court in Woodcock v Chief Constable of Northamptonshire [2023] EWHC 1062 (KB)

In Episode 187 of Law Pod UK, Rosalind English discusses with barrister Conor Monighan of 5 Essex Court the implications of this decision for the police and other public authorities in the UK. I would urge anyone interested in this subject not only to listen to the podcast but also to read Conor’s deep dive into the case in his recent post on UKHRB: A Common Law Duty of Care to Issue an Osman Warning? In that post you will find references to previous authorities on police liability in this context, with full citations.

And … please keep the feedback rolling! It will only take you a couple of minutes to fill in this very short anonymous survey. Thank you in advance. www.surveymonkey.co.uk/r/LawPodUK

Non-Fungible Tokens: Blockchain Technology and the Legal Framework

21 June 2023 by

In the latest episode of Law Pod UK, Robert Kellar KC discusses the developing law on NFTs with Victoria Walters, library learning advisor at the Bristol campus of the University of Law. We are grateful to Victoria and the University for the permission to repost this interview.

As Robert explains, the “token” is a crypto token that exists on a decentralised network, or a blockchain. The tokens are minted using blockchain technology, and can be transferred and traded. As for “non-fungible” – something that is fungible is interchangeable with other things, like money. Something is non-fungible is unique, like a piece of art.

Hear more about this interesting marketplace involving exchanges of considerable value by listening to Episode 186 of Law Pod UK.

Plus: we want your feedback! Please take a couple of minutes to fill in this very short anonymous survey. Thank you in advance. www.surveymonkey.co.uk/r/LawPodUK

Law Pod UK latest episode: Is AI Coming for the Lawyers?

22 May 2023 by

Professor Richard Susskind OBE is the IT adviser to the Lord Chief Justice of England and Wales, author of several books on technology and the law, and has been warning the legal profession about the effects of computing power on the law for decades. He is described by his publisher OUP as “the leading global authority on the future of legal services, based on 40 years of work in the field”

The latest edition of his book Tomorrow’s Lawyers predicts more change in law in the coming two decades than we have seen in the past two centuries.

Listen to Richard in discussion with Rosalind English in Episode 185 of Law Pod UK.


Finally, we at LawPod UK want your feedback! Please take a couple of minutes to fill in this very short anonymous survey. Thank you in advance.

www.surveymonkey.co.uk/r/LawPodUK

Law Pod UK latest episode: Navigating the Reservoir of Retained EU Law

15 May 2023 by

On May the 10th the government announced that a fundamental change to the Retained EU Law Bill. As you will hear from Episode 184, I discuss with Sam Willis of the Public Law Project the so called sunsetting clauses in the bill which would have repealed all EU legislation at the end of the year, with the exception of any EU law that ministers decided to keep. Since this episode was recorded, business Secretary Kimi Badenoch has said that the the government is to publish a list of the retained laws that will be scrapped by the end of 2023. Instead of thousands of unspecified EU laws expiring by the end of the year, a mere 600 out of the 5000 odd pieces of legislation from the EU era will be repealed. So please bear this in mind when listening to our discussion.

Here are the full citations for the cases referred to in the episode:

Walker v Innospec Ltd [2017] UKSC 47, [2017] 4 All ER 1004
Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307, [29] (Lord Bingham), cited as continuing to be applicable in Peninsula Securities Ltd v Dunnes Stores Ltd (Bangor) Ltd [2020] UKSC 36, [2020] 3 WLR 521, [49] (Lord Wilson JSC) (both applying Practice Statement (Judicial Precedent) [1966] 1 WLR 1234)
Lock v British Gas Trading Ltd [2016] EWCA Civ 983, [2017] 4 All ER 291

Tunein Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441 (26 March 2021)

And here are the following pensions cases that are relevant to this issue:

Case C-17/17 Hampshire v Board of the Pension Protection Fund [2019] ICR 327
Case C-168/18 Pensions-Sicherungs-Verein VVaG v Günther Bauer [2020] 2 CMLR 26
And see Hansard for the fourth sitting of the Public Bill Committee on the 22 November 2022, at pages 168-169, for the Minister’s following comments:

“the Department for Work and Pensions does not intend to implement the Bauer judgment through the benefits system, as it is a European Court judgment that does not fully align to the UK private pension protection scheme”

The Michael Schumacher “Interview”

24 April 2023 by

It has been widely reported that the German magazine Die Aktuelle recently ran a front cover with a picture of a smiling Schumacher and the headline promising ‘Michael Schumacher, the first interview’.

The strapline added: “it sounded deceptively real”.

Anyone walking past a news stand would have assumed that this was a genuine interview with the former Formula 1 driver, who has suffered catastrophic brain injury since a skiing accident in 2013. Only buyers of the edition would have learned from the full article inside, that the ‘quotes’ had been produced by AI.

The news agency Reuter reports that “Schumacher’s family maintains strict privacy about the former driver’s condition, with access limited to those closest to him.”

And in a 2021 Netflix documentary his wife Corinna said


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Law Pod UK latest episode: The most significant cases of 2022

23 December 2022 by

In our final episode of the year, Rosalind English, Lucy McCann and Jonathan Metzer discuss some of the most important judgments that have been handed down in the last twelve months. The recording of this episode took place a day before judgment was handed down in the “Rwanda case” ( R ((AAA) Syria and Ors) v Secretary of State for the Home Department [2022] EWHC 3230 (Admin).

Below are the citations for all the cases discussed in this episode.

  1. Coroner’s Regulation 28 report into the death of Molly Russell (30 September, 2022)
  1. R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410
  1. Attorney General’s Reference (No. 1 of 2022) [2022] EWCA Crim and Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32
  1. R (Gardner) v SSHSC [2022] EWHC 967
  1. R (Good Law Project & Runnymede Trust) v Prime Minister and SSHSC [2022] EWHC 298
  1. R (HM, MA and KH) v SSHD [2022] EWHC 695 (Admin)
  1. Leigh & Ors v Commissioner of Police of the Metropolis [2022] EWHC 527 (Admin)
  1. Hughes v Rattan [2022] EWCA Civ 107
  2. Vardy v Rooney [2022] EWHC 2017 (QB) (“Agatha Christie).

A link to the full transcript for this episode is available here.

Law Pod UK latest episode: Do we need laws against SLAPPs?

6 December 2022 by

Strategic litigation against public participation has been very much in the news lately, with calls from anti-SLAPPs campaigners for such abusive litigation to be banned by statute, or by amendments to the 2013 Defamation Act.

These lawsuits started in the United States in the late eighties, but they’ve certainly been on the rise in the UK and in the EU. So much so that the EU has brought out a draft directive to attempt to deal with the problem. In July this year, the then Deputy Prime Minister, Dominic Raab, launched an urgent call for evidence in response to the challenges presented by SLAPPs.

SLAPPs are often framed as legal cases. But they represent an abuse of law and procedure as their principal objective is stifling public debate rather than pursuit of a legal remedy. In Episode 173 of Law Pod UK Rosalind English discusses this phenomenon with Greg Callus, defamation specialist from Five Raymond Buildings.

A full transcript of the interview is available here.

Removal of gametes from brain dead man would breach his rights to privacy: Court of Protection

24 November 2022 by

The 22 year old patient in this case, X, was unconscious in intensive care during the course of this hearing, following a serious stroke. There was virtually no prospect that he would recover. This urgent application by X’s parents, out of hours, before Poole J was for a declaration that it would be lawful for a doctor to retrieve X’s sperm for storage after his death. The applicants also sought an order that X’s father V could sign the relevant consents under the Human Fertilisation and Embryology Act 1990 (“The 1990 Act”). The applicants did not seek any orders in respect of the use of X’s sperm once collected and stored. That was for another day.

The Trust took a neutral position on whether the declaration and order sought were in X’s best interests.


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The latest injunction against HS2 protestors bans nearly everyone anywhere on 170 mile route

7 November 2022 by

High Speed Two (HS2) Limited and the Secretary of State for Transport v Four Categories of Persons Unknown and Ross Monaghan and 58 other Named Defendants [2022] EWHC 2360 (KB)

 This case involved the application, and grant, of an interim injunction in the “unknown” as well as “known” protester context by Knowles J in the Birmingham District Registry.

.

The first claimant  was the company responsible for construction HS2, the high speed railway line between London and the North of England via the Midlands, part of which is already under construction.  The second claimant was the company responsible for the successful delivery of the HS2 scheme. 

A legislative scheme gave the company wide powers to acquire and take temporary possession of land for the purposes of construction and maintenance.  This land covers the whole of the proposed HS2 route, and other land providing access.  

Both claimants applied for an interim injunction to restrain trespass and nuisance by a large number of defendants who were opposed to the construction of HS2. Some of these defendants were named, most unnamed.


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Law Pod UK latest episode: Cryptocurrencies & NFTS – are they “property”?

2 November 2022 by

The Law Commission has recently brought out its consultation paper on these new forms of assets, and how they might be aligned with the ancient law on property. In Episode 171 of Law Pod UK Rosalind English talks to Robert Kellar KC about the challenges this novel arrangement of ownership presents to English property law. What do we mean, exactly, when we talk about the idea of digital assets?

We’re all very used to the idea of electronic money: for decades, money has been represented electronically on in our bank accounts. But the the Law Commission’s paper deals with quite different issues, when it comes to digital assets.

The consultation paper is at pains to stress that property law must encompass these new forms of ownership. As Robert points out in this episode, property rights are useful because they can be enforced against the whole world, whereas other legal rights can be enforced only against someone who has assumed a relevant duty in contract or tort.

Furthermore, the concept of property is widely used in statutes and case law, assuming a central role in proceedings concerning bankruptcy or insolvency, tortious or criminal interference with property, and death and succession.

The Law Commission’s conclusion thus far is that digital assets should be treated as a new category of property.

Listen to the episode and follow @LawPod_UK on Twitter if you have any feedback, ideas and comments for the team. Alternatively, read more about this topic on our blog here.

“Government control over the flow of information: Lord Sumption speaks out against the Online Safety Bill in latest episode of Law Pod UK

6 October 2022 by

The Online Safety Bill is currently making its way through the House of Commons, having reached the report stage in July. The bill’s concept of “legal but harmful” is controversial, and has attracted criticism from high places, not least of all former Supreme Court judge Jonathan Sumption. Lord Sumption joins Rosalind English in this episode to discuss the problems involved in defining this kind of harm and the concepts of “misinformation and disinformation” in the Bill. 

Lord Sumption worries about the “sheer randomness” of the process for identifying legal but harmful material, and points out that the internet is absolutely vast; the “scale and speed at which material is added to it every moment of our lives is breathtaking”. The only way, he says, that this can be controlled is by the use of algorithms. But they are incapable of detecting nuance or irony. They are blunt instruments. When you are applying this kind of technique to material at this scale, you are bound to get a very large number of false positives.

“So you will lose an enormous amount of perfectly acceptable material, material that is not only legal but not harmful”.

Listen to more in Episode 169.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.

Court of Appeal concludes in AG referral of jury acquittal of Colston 4 that ECHR rights were not engaged where damage to property was criminal

4 October 2022 by

AG’s Reference arising from a prosecution arising in the Crown Court at Bristol 28 September 2022

Four defendants were acquitted by a jury in Bristol Crown Court following their trial for allegations of criminal damage on 7 June 2020 to a statue of the English merchant Edward Colston (1636-1721). The story has been widely covered elsewhere so I will limit this post to a discussion of the reference itself.

The application with which this reference was concerned was whether conviction for the damage done to the statue was a disproportionate interference with the defendants’ right to protest, under the free speech Article 10, right to gather under Article 11, and the right to freedom of conscience under Article 9.

The Attorney General has the power to refer verdicts to the Court of Appeal under section 36 of the Criminal Justice Act 1972 in the event of acquittals to correct mistakes of law so that those mistakes are not perpetuated in the courts below.

It is important to note at the outset that this reference was not directed to the jury’s verdict itself. It was to clarify the law on public protest to avoid confusion.

The Court of Appeal has provided its own press summary of their decision. In the following paragraphs I gather together the salient observations in this decision.


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Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google Grenfell Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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