10 July 2018
Subscribers to the UKHRB will have received an earlier version of our announcement of recent podcasts by Emma-Louise Fenelon. There was a mix-up in the episode numbers and links which has now been corrected. Apologies for any confusion this may have led to, and please enjoy the properly attributed and linked recording!
10 July 2018
Emma-Louise Fenelon recently interviewed Richard Booth QC about a successful injunction application to prevent a gross misconduct disciplinary hearing. You can hear the interview on Episode 39 of Law Pod UK.
The Claimant, represented by Jeremy Hyam QC, was a consultant forensic psychiatrist whose employment duties included working on the healthcare wing at Lewes prison. Following the death in custody of an inmate on the healthcare wing who had been under the Claimant’s care, the Trust initiated an investigation into the Claimant’s conduct and capability. The report of the investigation made a number of findings of failure to meet professional standards in particular with respect to the record keeping of ward reviews, but put them in the context of an under-resourced prison service. Based on the report, the Trust’s case manager purported to convene a hearing to consider disciplinary action for gross misconduct against the Claimant.
An injunction was sought to prevent such hearing going ahead on the basis that, taken at its highest, the content of the investigation report did not justify a charge of gross misconduct; that the Trust’s policy definition of gross misconduct was lower that normally set by the common law; and that the Case Manager’s management statement of case went beyond the findings in the investigation report. Granting the injunction on an interim basis, the Court concluded that there were serious issues to be tried on all the issues raised by the Claimant and the balance of convenience was clearly in favour of the grant of the injunction.
The judgment can be found here: Bailii.
Law Pod UK continues to go from strength to strength and has surpassed 55k listens. All episodes are freely available to listen or download from a number of podcast platforms, including iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast.
26 June 2018
Two years from the vote to leave the European Union, Catherine Barnard, Professor of EU Law at Cambridge, considers the rocks and hard places of the Brexit negotiations. She speculates on what is meant by what exactly is meant by staying “within the remit of the CJEU”, something that has drawn a lot of fire, but has no legal meaning.
We may all be jaded with Brexit coverage. But do listen to Catherine’s podcast, it is remarkably unpartisan and clear on the facts.
Catherine’s series 2903cb is freely available on soundcloud and our repost is on iTunes and other podcast platforms, Episode 38 of Law Pod UK.
18 June 2018
Pimlico Plumbers Ltd & Anor v Smith [2018] UKSC 29 – read judgment
The Supreme Court has unanimously dismissed Pimlico Plumbers Ltd’s appeal and upheld the Employment Tribunal’s ruling that the Respondent – Mr Smith – a plumbing and heating engineer had been:
(a) a “worker” within the meaning of section 230(3) of the Employment Rights Act 1996;
(b) a “worker” within the meaning of regulation 2(1) of the Working Time Regulations 1998 (SI 1998/1833)
(c) in Pimlico’s “employment” within the meaning of section 83(2)(a) of the Equality Act.
Questions concerning the true employment status of individuals who are presented to the paying customer as being an integral part of the business in question are increasingly common. Despite being presented to the end customer as such, the purported legal reality is that the individual is self-employed for both tax and employment law purposes. This is partly what is described by such arrangements being part of the so-called “gig economy”.
Continue reading →
15 June 2018
In Episode 35 Matthew Hill discusses the lessons and warnings from the Bloody Sunday inquiry and the Hillsborough inquest in a talk recorded at One Crown Office Row’s 2018 seminar.
In Episode 36 , drawn from the same seminar, Emma-Louise Fenelon discusses the challenges around secrecy, anonymity and public information in major inquests and inquiries
In Episode 37 Gideon Barth considers when public inquiries are established or inquests reopened.
Law Pod UK is available for free download from iTunes, The Podcast App, Overcast, Audioboom and a number of other podcast platforms. Please rate and review us to help Law Pod UK continue to grow.
7 June 2018
In Episode 34 of Law Pod UK, Rosalind English talks to Professor Karen Yeung of Birmingham University about questions of civil liability of algorithm-run systems, the difficulties of regulating something we cannot truly predict, and the so-called “alignment problem” – how to align the utility function of intelligent machines with the values of the human race, which are very difficult to define.
Professor Yeung is Interdisciplinary Fellow in both the Law and Computer Science Schools at Birmingham, and recently gave evidence before the House of Lords Select Committee on AI. We posted on the report ‘AI in the UK: ready, willing and able?’ in April.
Law Pod UK is available for free download from iTunes, Overcast and Audioboom.
23 May 2018
This week Irish voters will decide whether there should be a continuing constitutional protection for the ‘unborn’. Novelist Sally Rooney’s article this week’s edition of the London Review of Books is short, but very well worth the read.
Pregnancy, entered into willingly, is an act of generosity, a commitment to share the resources of life with another incipient being. Such generosity is in no other circumstances required by law.
No legal system will force another person to donate living tissue, no matter how needy the recipient. An organ donor is not bound to the world’s needy recipients. Unless, Rooney points out, the law is concerning itself with a foetus.
If the foetus is a person, it is a person with a vastly expanded set of legal rights, rights available to no other class of citizen: the foetus may make free, non-consensual use of another living person’s uterus and blood supply, and cause permanent, unwanted changes to another person’s body. In the relationship between foetus and woman, the woman is granted fewer rights than a corpse.
The referendum this week concerns the Eighth Amendment to the Constitution, introduced in the early eighties, which protects ‘the unborn’.
16 May 2018
“When we leave the EU, we will be able to build on the successes achieved through our membership, and address the failures, to become a world-leading protector of the natural world. We have also published the 25 Year Environment Plan, which sets out this Government’s ambition for this to be the first generation that leaves the environment in a better state than that in which we inherited it. These good intentions must be underpinned by a strengthened governance framework that supports our environmental protection measures and creates new mechanisms to incentivise environmental improvement.”
Michael Gove has announced his plan for a UK Commission on the environment, for which the consultation paper is out now. The paper sets out the principles laid behind the Environmental Principles and Governance Bill which will be published in November this year. This proposed law is said to mark the creation of a “new, world-leading, statutory and independent environmental watchdog to hold government to account on our environmental ambitions and obligations once we have left the EU.”
The proposed Bill may not see the light of day, if today’s events are anything to go by. This afternoon the House of Lords voted (294:244) to include the principles of environmental protection in the European Union (Withdrawal) Bill, rather than introducing a separate piece of primary legislation as set out in this consultation document: the successful amendment is first up here.
However things turn out in the Commons, it is worth attending to the plans for maintaining and enhancing environmental protection in a post-Brexit UK.
Continue reading →
16 May 2018
PW v Chelsea and Westminster Hospital Trust and others (28 April 2018) [2018] EWCA Civ 1067 – read judgment
The Court of Appeal has refused to interfere with the Court of Protection’s decision that it was not in the best interests of a 77-year-old man with end stage dementia to be discharged home with a nasogastric tube inserted for feeding purposes. The COP judge said that she was not bound to continue life. The sanctity of life is not absolute.” Palliative care “would make [the patient] as comfortable as possible and ensure his dignity and comfort. He will pass away with palliation in a dignified way.”
The applicant applied for permission to appeal against a Court of Protection’s determination of his father’s best interests pursuant to Section 4 of the Mental Capacity Act 2005 and against a transparency order preventing the publication of any material identifying his father or the family.
16 May 2018
Dominic Ruck-Keene posted earlier on the order from the High Court that Google “delist” links in its search results to articles about the spent conviction of a businessman. You can hear him discussing the so-called “right to be forgotten” with Rosalind English in the latest episode of Law Pod UK.
Law Pod UK is available for free download on iTunes, Audioboom and Overcast.
11 May 2018
Unlockd Ltd and others v Google Ireland Limited and others (unreported, Roth J, Chancery Division 9 May 2018) – transcribed judgment awaited
Unlockd, an app developer, sought an interim injunction to prevent Google withdrawing its services. Roth J found that the balance of convenience was in the applicants’ favour. Their claim raised a serious issue to be tried and any action by Google to withdraw their platform would severely damage the applicants’ business. An interim injunction was granted.
Continue reading →
3 May 2018
Calderdale Huddersfield NHS Foundation Trust v Sandip Singh Atwal [2018] EWHC 961 (QB) — read judgment
In a landmark case an NHS trust has successfully brought contempt proceedings against a DJ who grossly exaggerated the effect of his injuries in an attempt to claim over £800,000 in damages for clinical negligence. He faces a potential jail sentence.
Background
In June 2008 Sandip Singh Atwal attended the A&E department of Huddersfield Royal Infirmary with injuries to his hands and lip sustained after being attacked with a baseball bat. In 2011 Mr Atwal sued Calderdale and Huddersfield NHS Foundation trust for negligence, alleging a failure to treat his injuries appropriately. The trust admitted liability, offering Mr Atwal £30,000 to settle the case. Mr Atwal did not accept the offer and in 2014 made a claim for £837,109. The claim including substantial sums for future loss of earnings and care, on the basis that he was unable to work and was grossly incapacitated as a result of his injuries.
The trust were suspicious of Mr Atwal’s claimed disabilities, which were out of all proportion to his injuries and were inconsistent with entries in his contemporaneous medical records. In 2015 they commissioned covert video surveillance of Mr Atwal and investigated his social media postings. The footage showed him working as a courier, lifting heavy items without visible signs of discomfort and dancing in a music video for a single he had released. This led the trust to plead fraudulent exaggeration and to seek to strike out the whole of the special damages claim as an abuse of process. In 2016, shortly before the assessment of damages hearing, Mr Atwal accepted the trust’s offer of £30,000. However the whole £30,000 in compensation was swallowed up in paying the trust’s costs. In fact, Mr Atwal owed a further £5,000 to the trust after eight years of litigation.
Contempt Proceedings
In November 2016 the trust made an application to bring committal proceedings against Mr Atwal for contempt of court, claiming that he had pursued a fraudulent claim for damages for clinical negligence by grossly exaggerating the continuing effect of his injuries. It alleged two forms of contempt:
27 April 2018
Recently the clinical negligence team at 1 Crown Office Row held a seminar debating the liability of private hospitals and clinics. In “Lessons learned from the Paterson litigation” two talks on the topic were given then a case scenario was presented for the panel to discuss. Making up the claimant’s panel are Elizabeth-Anne Gumbel QC and Robert Kellar. For the defendants are John Whitting QC and Jeremy Hyam QC. The event was chaired by Dame Christina Lambert.
We have recorded the case scenarios for Law Pod UK which are now available for download: tune in to Episode 30 (part 1) and Episode 31 part 2).
Law Pod UK is available for free download from iTunes, Audioboom and Overcast.
26 April 2018
We posted previously about the case of Goldscheider v Royal Opera House. There was a lot of interesting material in the judgment, not all of it to do with the law, so we decided to invite a musician on to Law Pod UK to explore the player’s perspective. Tune in to Episode 29 to hear Rosalind English in discussion with opera singer and composer Susie Self about the realities of orchestral placement, ear defenders, hearing loss and the hazards faced by musicians on the performing stage.
Law Pod UK is available for free download from iTunes, Audioboom and Overcast.
18 April 2018
A report from the UK House of Lords Select Committee on Artificial Intelligence has made a number of recommendations for the UK’s approach to the rise of algorithms. The report ‘AI in the UK: ready, willing and able?’ suggests the creation of a cross-sector AI Code to help mitigate the risks of AI outstripping human intelligence.
The main recommendation in the report is that autonomous power to hurt, destroy or deceive human beings should never be vested in artificial intelligence. The committee calls for the Law Commission to clarify existing liability law and considers whether it will be sufficient when AI systems malfunction or cause harm to users. The authors predict a situation where it is possible to foresee a scenario where AI systems may
malfunction, underperform or otherwise make erroneous decisions which cause harm. In particular, this might happen when an algorithm learns and evolves of its own accord.
The authors of the report confess that it was “not clear” to them or their witnesses whether “new mechanisms for legal liability and redress in such situations are required, or whether existing mechanisms are sufficient”. Their proposals, for securing some sort of prospective safety, echo Isaac Asimov’s three laws for robotics.
But these elaborations of principle may turn out to be merely semantic. The safety regime is not just a question of a few governments and tech companies agreeing on various principles. This is a global problem – and indeed even if Google were to get together with all the other giants in this field, Alibaba, Alphabet, Amazon, Apple, Facebook, Microsoft and Tencent, it may not be able to anticipate the consequences of building machines that can self-improve.
Continue reading →
This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor:
Jasper Gold
Assistant Editor:
Allyna Ng
Editors:
Rosalind English
Angus McCullough KC
David Hart KC
Martin Downs
Jim Duffy
Jonathan Metzer
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