Media By: Rosalind English


One trade freedom we could do without

28 June 2016 by

istock_000004682690small_cowsSupporters of Brexit and campaigners for animal welfare are not natural bedfellows. And indeed my quick poll of the intuitive reaction to Thursday’s vote revealed anxiety about a future race to the bottom in terms of welfare standards as European regulations are unpicked and new trade deals are carved out, whether with individual member states of the EU, the European Union as a whole, or under the surveillance of the WTO. (But here’s a call for action: https://action.ciwf.org.uk/ea-action/action?)ea.client.id=119&ea.campaign.id=53173&ea.tracking.id=98b15a7c&utm_campaign=transport&utm_source=ciwftw&utm_medium=twitter

Which is why it is critical at this moment to remember that the obstacle in the way of this country reviewing its participation in the trade in live animals is one of the pillars of the EU Treaty: free movement of goods. Animals are regarded as goods, and any measure adopted by a member state government interfering with the movement of livestock within the single market and beyond its borders with its trading partners has been prohibited as a “quantitative restriction” on exports. When we are eventually free of this overarching prohibition, no time should be lost in grasping the opportunity to alter our laws in recognition of humane standards in animal husbandry.

Some Background: veal crates and the port protests in the 1990s

Just at the time when the red carpet was being rolled out for the Human Rights Act, campaigners for the rights of non human animals had their eye on a much more difficult task: persuading the government that shipments of young calves to veal crates across the Channel defeated our hard-won animal welfare laws and were in breach of the EU’s own proclaimed animal protection measures. The practice of rearing veal for the popular white meat involves confining a week old calf in a box for five months until slaughter. The well respected farm animal charity Compassion in World Farming managed to convince the UK courts that they not only had standing but an arguable case that this export trade breached the domestic prohibition on the veal crate system as well as the relevant EU Convention and Recommendation. CIWF contended that the UK government had power under Community law

to restrict the export of veal calves to other Member States where the system described above was likely to be used, contrary to the standards in force in the United Kingdom and the international standards laid down by the Convention to which all the Member States and the Community had agreed to adhere….

the export of calves to face rearing contrary to the Convention is considered to be cruel and immoral by animal welfare organisations and a considerable body of public opinion, supported by authoritative scientific veterinary opinion, in the Member State from which exports occur.

In fact the EU rules merely contained stipulations as to the minimum width of veal crates and the composition of veal calves’ diets.
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Father should be allowed to apply for parental responsibility following surrogacy

25 May 2016 by

surro imageZ (A Child) (No 2) [2016] EWHC 1191 (Fam) 20 May 2016 – read judgment.

The Court of Protection has granted an order for a declaration of incompatibility with Convention rights of a section in the Human Fertilisation and Embryology Act on grounds of discrimination.

This case concerned a child, Z, who was born in August 2014 in the State of Minnesota in the United States of America. Z was conceived with the applicant father’s sperm and a third party donor’s egg implanted in an experienced unmarried American surrogate mother. The surrogacy arrangements were made through the agency of an Illinois company and in accordance with Illinois law.

Following Z’s birth, the father obtained a declaratory judgment from the appropriate court in Minnesota, relieving the surrogate mother of any legal rights or responsibilities for Z and establishing the father’s sole parentage of Z. Following that court order he was registered as Z’s father in Minnesota. The father has since returned to this country, bringing Z with him.

The legal effect of this is that the surrogate mother, although she no longer has any legal rights in relation to Z under Minnesota law, is treated in the UK as being his mother. By the same token, whatever his legal rights in Minnesota, the father has no parental responsibility for Z in this country. The only two ways in which the court could secure the permanent transfer of parental responsibility from the surrogate mother to the father is by way of a parental order or an adoption order. The father would obviously far prefer a parental order.
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Court of Protection orders continued reporting restrictions after death

27 April 2016 by

why_we_need_kidney_dialysis_1904_xIn the matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015) v The Applicant and Associated Newspapers Ltd and others [2016] EWCOP21 – read judgment

The Court of Protection has just ruled that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death.

I posted last year on the case of a woman who had suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act.  An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment (King’s College Hospital NHS Foundation Trust v C and another  [2015] EWCOP 80).
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Judge allows paternity test for DNA disease analysis

20 April 2016 by

298x232-dna_genetic_test-298x232_dna_genetic_test

Spencer v Anderson (Paternity Testing) [2016] EWHC 851 (Fam) – read judgment

A fascinating case in the Family Division throws up a number of facts that some may find surprising. One is that this is the first time the courts in this country have been asked to direct post-mortem scientific testing to establish paternity. The other is that DNA is not covered by the Human Tissue Act, because genetic material does not contain human cells. One might wonder why the statute doesn’t, given that DNA is the instruction manual that makes the  human tissue that it covers – but maybe updating the 2004 law to cover genetic material would create more difficulties than it was designed to resolve.

The facts can be briefly stated. The applicant had been made aware of his possible relationship to S, who had died of bowel cancer some years before. When S had presented with the disease, it turned out that there was a family history of such cancer. The hospital treating him therefore took a blood sample and extracted DNA from it to test for high-risk genes. If the applicant was the son of the deceased he would have a 50% risk of inherited predisposition to bowel cancer. This risk would be mitigated by biannual colonoscopies.
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South Africa’s President Zuma survives impeachment vote despite judgment against him

6 April 2016 by

President_Jacob_Zuma_Official_400x400Economic Freedom Fighters v Speaker of the National Assembly, President Jacob Zuma and Public Protector Case CCT 143/15; Democratic Alliance v Speaker of the National Assembly, President Jacob Zuma, Minister of Police, Public Protector with Corruption Watch as Amicus Curiae – Case CCT 171/15 (31 March 2016) – read judgment

The Constitutional Court of South Africa last week handed down a damning judgement against the ruling head of the African National Party (the ANC). Despite this judgment, parliament voted not to impeach him.  The ANC defeated the opposition-sponsored motion, saying Mr Zuma was not guilty of “serious misconduct”.

See University of Cape Town law professor Richard Calland’s article on the consequences of this ruling for President Zuma.

Background to the Constitutional Court proceedings

The Public Protector is an institution set up under the South African Constitution to ensure good governance and “strengthen constitutional democracy in the Republic”. She investigated allegations of improper conduct or irregular expenditure relating to the security upgrades at President Zuma’s Nkandla private residence, and she concluded that the President failed to act in line with certain of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources. Exercising her constitutional powers to take appropriate remedial action she directed that the President, duly assisted by certain State functionaries, should work out and pay a portion fairly proportionate to the undue benefit that had accrued to him and his family. Added to this was that he should reprimand the Ministers involved in that project, for specified improprieties.

For well over a year, neither the President nor the National Assembly did what they were required to do in terms of the remedial action. Therefore the EFF and the DA took these applications agains the National Assembly and the President, arguing that the President should be ordered to comply with the remedial action.
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Triumph for the rule of law in South Africa?

1 April 2016 by

Jacob-Zuma(R)The leader of South Africa’s main opposition party, the Democratic Alliance, has called for President Zuma to be impeached following the Constitutional Court’s finding that he had flouted the Constitution by failing to “uphold, defend and respect the Constitution.”

The case was brought by the Democratic Alliance, amongst others, seeking validity for the Public Protector’s remedial action against the President. Public Protector Thuli Madonsela had reported that Zuma should reimburse the country the money he has spent on upgrades to his palatial homestead. As a course of this remedial action, she recommended that he pay back a portion of the funds used for the upgrades. But this report was set aside by the National Assembly after Zuma made submissions on why he should not pay back the funds.

Chief Justice Mogoeng Mogoeng, giving judgment for the Court, said that the remedial action had a binding effect.
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Joint Enterprise press release from the Appellant’s solicitors

18 February 2016 by

20308267It is important to note that the draft judgment of the Supreme Court was embargoed from all apart from solicitors and counsel until today so our client, Ameen Jogee, and his family only found out about our success this morning. There are also no facilities for Ameen to attend court so his family have authorised us to release this statement: 

  1. We are glad our arguments on the law were accepted by the court and very pleased that the court took this opportunity to correct a grossly erroneous tangent of law and remove “parasitic accessorial liability” (often referred to as “joint enterprise”) from our law.
    1. The law had incorrectly and unfairly developed to convict secondary parties on the basis of mere “foresight or contemplation” of what someone else might do. This over-criminalised secondary parties, particularly young people like Ameen Jogee.
    2. The consequence was that people were convicted of serious offences, committed by others, and imprisoned for lengthy periods. Primarily, we suggested to the Court that there should be a return to the foundational law encapsulated in cases before the tangent created by joint enterprise. Our primary submission at the hearing in October 2015 was that the true test for accessorial liability is knowledge of the essential matters of that offence or that type of offence and acts which demonstrate an intention to assist or encourage that offence or that type of offence. Such a formulation can adapt to individuals assisting each other or cases where there is evidence of a common plan. The Supreme Court judgment appears to adopt our submissions.
  1. We are delighted for Ameen and his family and the many other families of those affected by joint enterprise who have been waiting on this judgment.
  2. This judgment does not refer in detail to all the material placed before the court so future cases and appeals must take care to ensure that the errors are not repeated.
  3. Internationally it is vital that the errors created by joint enterprise are also corrected.
  4. We would like to thank our excellent staff, our team of counsel Felicity Gerry QC and Catarina Sjölin of 36, Bedford Row and Adam Wagner and Diarmuid Laffan of 1 Crown Office Row. We would also like to thank the teams for Mr Ruddock and the interveners (Just for Kids Law and JengBA). Many of the lawyers involved have worked pro bono for all or some of the time on this difficult case.
  5. A special thank you to Dr Matt Dyson of Trinity College Cambridge whose meticulous research over 500 years of law enabled us to prove what the law was and how it went wrong. Also thank you to Beatrice Krebs from the University of Reading for her comparative work on authorisation which enabled us to place alternative options before the court, and to Professor Luke McNamara from the University of Wollongong whose 2014 paper identified the probability issues from an Australian perspective, which was an important part of this appeal.
  6. We must now focus on the final orders which are not due for some weeks. The Court is yet to decide what effect its conclusions on the principles of joint enterprise will have on our client’s specific case.
  7. If you want an easy read on the case, see these 2 blogs by Catarina Sjölin and Felicity Gerry QC for Nottingham Law School: http://blogs.ntu.ac.uk/nlsblog/tag/joint-enterprise/
  8. In the words of Hon Michael Kirby AC CMG “To hold an accused liable for murder merely on the foresight of a possibility is fundamentally unjust. It may not be truly a fictitious or ‘constructive liability’. But it countenances what is ‘undoubtedly a lesser form of mens rea’. It is a form that is an exception to the normal requirements of criminal liability. And it introduces a serious disharmony in the law, particularly as that law affects the liability of secondary offenders to conviction for murder upon this basis”.
  9. We started this case looking for an alternative probability test for those who were not accused of direct participation with shared intention, along the way we identified the legal errors which had been perpetuated over many years.

We are glad to have played a role in correcting this unjust law.

 

 

 

NI Judge acquits Pastor of “gross offence” against Muslims

17 February 2016 by

MolanaDPP v McConnell [2016] NIMag (5 January 2016)

Silence is the language of God, all else is poor translation.

(Jalāl ad-Dīn Muhammad Rūmī , 13th Century Persian Islamic scholar and poet)

These words were the last in the ruling by DJ McNally in the Belfast county court, acquitting Pastor McConnell of grossly offending Muslims in a sermon that had been delivered in church but also transmitted over the internet. The Pastor had declared from the pulpit the there were more and more Muslims “putting the Koran’s hatred of Christians and Jews alike into practice”, and the sermon had continued in a similar vein.
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The “socialite” who rejected life saving treatment

3 December 2015 by

why_we_need_kidney_dialysis_1904_xKing’s College Hospital NHS Foundation Trust v C and another  [2015] EWCOP 80 read judgment

A woman who suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act.  An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment. Continuation of such treatment is unlawful, even if the refusal seems irrational to others. As the judge said, this rule

reflects the value that society places on personal autonomy in matters of medical treatment and the very long established right of the patient to choose to accept or refuse medical treatment from his or her doctor (voluntas aegroti suprema lex). Over his or her own body and mind, the individual is sovereign (John Stuart Mill, On Liberty, 1859).

The Trust’s further application to be allowed to restrain C “physically or chemically” from leaving the hospital where she was receiving the dialysis was therefore rejected.

Background facts

The coverage of this case reflects a certain level of social disapproval. “Right to die for socialite scared of growing old” – “Socialite allowed to die was terrified of being poor” run the headlines. Behind them lurks an essentially religious consensus that people should not be allowed to opt out of senescence and its associated poverty and suffering, such matters being for God alone.  There is also a measure of censoriousness behind the  details brought to court regarding C’s attitude to motherhood and men, the news that she had breast cancer, her love of “living the high life” and her dread of growing old “in a council house”.
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The Human Genome and Human Rights recommendations: “aspirational and symbolic”

2 December 2015 by

DNA database impact on human rightsThe International Bioethics Committee, under the auspices of UNESCO, has recently updated its guidance on the human genome and human rights. The Report of the IBC on Updating its Reflection on the Human Genome and Human Rights was published in October 2015, and takes into account the  Universal Declaration on the Human Genome and Human Rights (1997), the International Declaration on Human Genetic Data (2003) and the Universal Declaration on Bioethics and Human Rights (2005). The following summary is based on Alison Hall’s review of the recommendations in the PHG Foundation’s bulletin.

The IBC’s report attempts to review all the relevant ethical challenges for regulating genetic research and clinical care across national boundaries. The area that has received most coverage in the press involves the emerging techniques for editing the human genome, in particular engineering gametes. The other four areas of application the IBC has chosen for review are:

Direct-to-consumer genetic tests and genetic analysis that is not related to health care
Precision/personalised medicine
Biobanks (banks of genetic information)
Non-invasive prenatal testing
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The Magna Carta, Then and Now: Public Lecture

24 November 2015 by

National Archives Displays An Original Copy Of Magna CartaIn celebration of UN Human Rights Day on 10 December, Professor David Carpenter will be giving a lecture at Queen Mary University London.

David Carpenter is a Professor of Medieval History at King’s College London and author of ‘Magna Carta’, published by Penguin Classics.

Magna Carta, forced on King John in 1215 by rebellion, is one of the most famous documents in world history. It asserts a fundamental principle: that the ruler is subject to the law. David Carpenter’s commentary draws on new discoveries to give an entirely fresh account of Magna Carta’s text, origins, survival and enforcement, showing how it quickly gained a central place in English political life.
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Buzzards should not be protected any more than herring gulls and cormorants: High Court

14 November 2015 by

buzzard06McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

Public opinion regarding raptors and pheasant shoots should not influence the authorisation of buzzard control, the Administrative Court has ruled. Any derogations to the EU protection of wild birds should apply equally across wild avian species, irrespective of their popularity.

This was a gamekeeper’s challenge to the refusal by the defendant statutory body (Natural England) to grant him a licence under the Wildlife and Countryside Act 1981 to kill buzzards which he said were destroying such high numbers of game birds as to render his shoot unviable.

At the heart of the claimant’s challenge was his contention that NE treated raptors differently from other wild birds, making it far harder, well-nigh if not quite impossible, for anyone to meet the statutory conditions for the issue of a licence.
He maintained the defendant treated these licence applications differently because of the public controversy which the grant of a licence for the killing of buzzards would engender. This was because of perceived adverse public opinion about the protection of a pheasant shoot. Hence, the decision was based on unjustified inconsistencies in NE’s treatment of raptor and other birds equally protected under the law. 
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Suing Facebook is no easy matter

9 November 2015 by

facebook_logoRichardson v Facebook [2015] EWHC 3154 (2 November 2015) – read judgment

An action in defamation and under the right to privacy against Facebook has been dismissed in the High Court. The Facebook entity named as defendant did not “control” the publication so as to allow liability; and even if it did, no claim under the Human Rights Act could lie against FB as it could not be described as any sort of a public authority for the purposes of Section 6 of the Act.

The claimant, acting as a litigant in person, sought damages in respect of the publication in 2013 and 2014 of a Facebook profile and a posting on the Google Blogger service. The Profile and the Blogpost each purported to have been created by the claimant, but she complained that each was a fake, created by an impostor. She claimed that each was defamatory of her, and infringed her right to respect for her private life under Article 8 of the European Convention on Human Rights (ECHR).
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Management consultant charges mother £400 for each visit to nursing home – Court of Protection

28 October 2015 by

Court of protectionSF, Re [2015] EWCOP 68 (26 October 2015) – read judgment

This Court of Protection case has, unusually, made the papers, and when you read the details you won’t be surprised. What the judge described as a “callous and calculating” son charged his widowed mother, who suffered from dementia, more than £117 000 for “out of pocket expenses” visiting her in her nursing home.  He had been in charge of her expenses since 2004 when Sheila (the mother) had been admitted to hospital under the Mental Health Act 1983. But alarm bells only went off after her unpaid nursing bills reached nearly £30 000. The Public Guardian launched an enquiry that led to this hearing of an application for the court to revoke the son’s  (Martin’s) Enduring Power of Attorney (‘EPA’) and to direct him to cancel its registration. The Public Guardian also applied to freeze Sheila’s bank account.
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Transparency in the Family Court: judge allows publication of article about children in care

26 October 2015 by

Fountain pen on a blank page open on a diary book...

Fountain pen on a blank page open on a diary book…

Tickle v Council of the Borough of North Tyneside and others [2015] EWHC 2991 (Fam) (19 October 2015) – read judgment

Before the court were cross applications by a journalist and the local authority regarding care proceedings which the former wished to report. The individual in question was a mother (representing herself in these proceedings) who had had a number of children taken into care in the past. Her life had been “blighted” historically by serious mental health problems which have at times made it unsafe for her to care for her children. At the time of this application, it seemed, those times appeared to be behind her. Be that as it may, she and her children had been through the care system on a number of occasions.

She had shared this experience on social media sites, and had described, in particular, how she fought for her youngest child (a child who was removed at birth) and how she eventually succeeded in having that child live with her. Bodey J, who had read some of her online articles,  found them “balanced and responsible”.
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