Media By: Rosalind English


The last Novichok poisoning: Law Pod UK

6 September 2020 by

The Russian political dissident Alexei Navalny is still in an induced coma in a hospital in Berlin after being poisoned with the nerve agent Novichok on a flight from Siberia to Moscow on the 20th of August. The last time we heard of this lethal organophosphate was two years ago when two Russian residents in Salsibury, Wiltshire, survived an assassination attempt. Dawn Sturgess, who lived eight miles away, was not so lucky. She died after spraying herself with a discarded bottle of the poison which she thought to contain perfume.

At her inquest, the senior coroner declined to extend the scope of his investigation to the involvement of the Russian state in her death as collateral damage to the assassination attempt. Her family took judicial review proceedings to challenge his conclusion. They were partially successful; the court said the although the coroner couldn’t state, in terms, that the Russian state was liable in civil or criminal law, he could still investigate that matter. They reverted the matter to him. Read the judgment of the Administrative Court on the 24th of July here.

The senior coroner, who must now ask if answering how Ms Sturgess died requires him to look at involvement of Russian state. In the latest episode of Law Pod UK Rosalind English discusses the broader implications of this case with Matt Hill of 1 Crown Office Row. (Apologies – due to a technical error, the wrong episode was posted under “The Salisbury Poisonings” yesterday. The correct episode is now in place.


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.

Force feeding not in anorexia patient’s best interests

26 August 2020 by

Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40

In this carefully nuanced judgment, the Court of Protection has ruled that although a patient with a chronic eating disorder would in all probability face death she did not gain weight, it would not be in her best interests to continue being subjected to forced feeding inpatient regimes.

AB is a 28 year-old woman who has over many years suffered from anorexia nervosa. She was first diagnosed when she was a teenager of 13 and now has a formal diagnosis of a Severe and Enduring Eating Disorder (‘SEED’).

The NHS Trust and the team of treating clinicians who have been responsible for providing care for AB applied to the COP for declaratory relief pursuant to ss 4 and 15 of the Mental Capacity Act 2005 in these terms:
(i) it is in AB’s best interests not to receive any further active treatment for anorexia nervosa; and that
(ii) AB lacks capacity to make decisions about treatment relating to anorexia nervosa.

Issues before the Court

Litigation capacity: it was not in issue that AB did have the capacity to instruct her solicitors.

General capacity: this was a more difficult question to be decided under Section 3 of the Mental Capacity Act. The key question was, did she have the mental capacity to make a decision about the specific medical treatment proposed. Roberts J had to decide one way or another on whether she should be tube fed, probably under sedation (otherwise she would remove the tube).

The Trust argued that she did not have this capacity, relying on evidence from AB’s treating psychiatrist Dr B. AB said she did have this capacity.

Best interests: was it in AB’s interests to discontinue any tube feeding? The unanimous professional view of her treating team was that palliative care and no further tube feeding was in her best interests. However, since the decision not to have any further forced feeding was a life-threatening one, the case had to be referred to the Court of Protection.


Continue reading →

Challenge to legality of lockdown succeeds in New Zealand

21 August 2020 by

Andrew Borrowdale v Director-General of Health (First Respondent), the Attorney General (Second Respondent) and the New Zealand Law Society (Intervener) CIV-2020-485-194  [2020] NZHC 2090 

Even in times of emergency, … and even when the merits of the Government response are not widely contested, the rule of law matters.

Thus commenced a lengthy judgment by the New Zealand High Court, Wellington Registry, ruling that the first nine days of New Zealand lockdown were unlawful. The three judge panel found that

While there is no question that the requirement was a necessary, reasonable and proportionate response to the Covid-19 crisis at the time, the requirement was not prescribed by law and was therefore contrary to section 5 of the New Zealand Bill of Rights Act.


Continue reading →

Disclosure of information to GP: not “data” under GDPR

12 August 2020 by

Scott v LGBT Foundation [2020] EWHC 483 (QB)

The High Court has struck out a claim that the disclosure of certain personal information made by a charity to the claimant’s GP was unlawful. Although only summary, this judgment goes to the heart of what we believe data protection to be about. As you will tell from my somewhat trenchant comments at the end of this post, I find it difficult to accept the main conclusion in this ruling.

The LGBT Foundation provides services including counselling and health advice. The claimant sought to access the charity’s services by completing a self-referral form in 2016. The form gave an option for the self-referring individual to consent to information being disclosed to their GP, and stated that the charity would break confidentiality without the individual’s consent if there was reason to be seriously concerned about their welfare. Mr Scott gave his GP’s details in the form. He also stated in the form that he no longer wished to be alive, detailed a previous suicide attempt, said that he had recently been self-harming and that he continued to suffer problems from drug use.

A sessional health and wellbeing officer at the charity conducted an intake assessment for Mr Scott to ascertain what support would be best for him. She told him of the confidentiality policy, including the provision that any information he disclosed would be passed on if the charity considered him to be at risk. In this interview he gave further details of drug use, self-harm and suicidal thoughts. The health officer paused the assessment and consulted a colleague, who advised her to inform Mr Scott that they would be contacting his GP because they had concerns about his welfare. The charity concluded it was at that time unable to provide him with the services he sought from them because of his ongoing drug use. They passed the information on to Mr Scott’s GP via a telephone call. This information was in due course recorded in his medical records.


Continue reading →

Face masks in Strasbourg

10 August 2020 by

 Tribunal Administrative de Strasbourg, N°2003058 M. A. et autres 

M. Simon, Juge des référés 

Ordonnance du 25 mai 2020 

This judgment was handed down over two months ago but its relevance to the current rules on face masks in the UK makes for interesting reading. It is available only in French.

A group of individuals brought a challenge to a decree issued by the mayor of Strasbourg obliging citizens over the age of eleven to wear facemarks in the streets and other areas, in particular the Grande-Ile (an island in the centre of Strasbourg), from 10am – 8pm, enforceable by a fine. The obligation was in force from May 21 to 2 June.


Continue reading →

New Episode of Law Pod UK: the Gerry Adams case

23 July 2020 by

The recent ruling by the Supreme Court that the former leader of Sinn Féin had been unlawfully detained and convicted in the 1970s has elicited some severe criticism from high places, including former Supreme Court judge Jonathan Sumption. Matt Hill of 1 Crown Office Row discusses this case with Rosalind English in the latest episode of Law Pod UK. Matt has worked on a number of cases relating to the Troubles in Northern Ireland. He was involved as an in historian on the Bloody Sunday Inquiry, was junior counsel to the Inquiry on the recent Birmingham pub bombing inquests, and has written about the use of inquiries and inquests in dealing with the legacy of the Troubles. The discussion focusses on the so-called “Carltona” principle regarding the responsibility of ministers to consider each function of administration. Lord Sumption has said that the Supreme Court ruling in the Adams case has “left the law in an awful mess”.

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.

Raves, laughing gas and drink: a nuisance in Hackney

20 July 2020 by

London Borough of Hackney v Persons Unknown in London Fields, Hackney (The ‘prescribed area’) [2020] EWHC 1900 QB

This case involved the ancient tort of public nuisance. Such a claim is addressed to behaviour which inflicts damage, injury or inconvenience on all members of a class who come within the sphere or neighbourhood of its operation. As Linden J explained, a person may bring an action in their own name in respect of a public nuisance

when they have suffered some particular, foreseeable and substantial damage over and above what has been sustained by the public at large, or when the interference with the public right involves a violation of some private right of the claimant. A local authority may also institute civil proceedings in public nuisance in its own name pursuant to section 222 Local Government Act 1972: see Nottingham City Council v Zain  [2002] 1 WLR 607.

The case heading (partial screenshot above) provides a pretty comprehensive list of activities that would come within the category of “public nuisance”. I recall John Spencer’s immortal words from his article in the Cambridge Law Review on the subject in 1989:

Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common scold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance.

So as you can see, this tort encompasses quite a range of human enterprises.


Continue reading →

Law Pod UK: Catherine Barnard on the latest in the Brexit negotiations

15 July 2020 by

After something of an hiatus occasioned by the Covid-19 pandemic, we are delighted to welcome Catherine Barnard back onto our podcast with her clear and informative account of the legal steps towards Brexit.

In the latest episode of her podcast 2903cb, Professor Barnard talks to journalist Boni Sones about the latest in the trade talks. What is happening with the timetables and deals to get the UK out of the EU by the end of this year? Tune in to Episode 120 of Law Pod UK to find out.

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.

Law Pod UK Latest Episode: Dignity in Dying in the age of Covid -19

13 July 2020 by

The campaign group Dignity in Dying has recently brought out a new book called Last Rights: The Case for Assisted Dying, by Sarah Wotton and Lloyd Riley, Director and Policy manager of the campaign group Dignity in Death. The book is designed to restart the discussion on how we provide dying people with greater choice at the end of life.

Even with the best palliative care, some people still suffer terribly at the end of life, as Sarah and Lloyd explain in this discussion. Episode 119 of Law Pod UK highlights the way in which the pandemic has brought death and dying to the centre of pubic discourse and how the time has come again to press for an inquiry on the blanket ban on assisted dying.

See my post referred to in the discussion on the latest Court of Protection case on respecting a patient’s wishes as to the manner of death.


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.

FGM protection order in child’s best interests – Court of Appeal

13 July 2020 by

A (A Child) (Rev 1) [2020] EWCA 731 (15 June 2020)

This was an appeal by the secretary of state against a decision of the President of the Family Division concerning the exercise of the family court’s jurisdiction to make a female genital mutilation protection order (FGMPO) under the Female Genital Mutilation Act 2003 Sch.2 Pt 1 para.1. The child concerned (“A”), was under imminent threat of deportation to Bahrain or potentially Sudan.  The original FGM protection order in relation to A was made by Newton J in December 2019. He said that

It is difficult to think of a clear or more serious case where the risk to A of FGM is so high.

Section 2 of the Female Genital Mutliation Act establishes the offence of assisting a girl to mutilate her own genitalia, where a person

aids, abets, counsels or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris.

Section 3 extends this to “assisting a non-UK person to mutilate overseas a girl’s genitalia”.

FGMPOS offer a legal means to protect and safeguard victims and potential victims of FGM. They are granted by the family court and are unique to each case. They contain conditions to protect a victim or potential victim from FGM, including, for example, surrendering a passport to prevent the person at risk from being taken abroad for FGM or requirements that no one arranges for FGM to be performed on the person being protected.

After the order is issued, the police receive a copy, together with a statement showing that the respondents and any other persons directed by the court have been served with the order or informed of its terms.

In this case the President of the Family Division had held that in exercising its discretion about making an FGM protection order, a family court was not bound to take into account, even as a starting point, a previous assessment of risk of FGM made by the Immigration and Asylum Chamber of the First-tier Tribunal in determining an asylum application based upon the risk of FGM upon return.


Continue reading →

LawPod UK: Dentists and Covid-19

6 July 2020 by

The spotlight during the pandemic has been on frontline workers in the medical profession. But if you think of it, the real hazards are to be found in the dentist’s surgery, where most interactions with patients involve an operation in the mouth, whether it be drilling, cleaning or extraction. Most of what a dentist or a dental hygienist does is what has become widely known as an AGP – “aerosol generating procedure”.

In the latest episode of Law Pod UK Rosalind English talks to the head of indemnity at the British Dental Association Len D’Cruz about the challenges facing the dental profession during lockdown and the even greater hurdles to be faced after dentists resumed practice on the 8th of June 2020.

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.

Machine Learning in Healthcare: Regulating Transparency

18 June 2020 by

Close up of Asian women with hi tech digital technology screen over the eye.

PHG, linked with Cambridge University, provides independent advice and evaluations of biomedical and digital innovations in healthcare. PHG has recently published a series of reports exploring the interpretability of machine learning in this context. The one I will focus on in this post is the report considering the requirements of the GDPR for machine learning in healthcare and medical research by way of transparency, interpretability, or explanation. Links to the other reports are given at the end of this post.

Just a brief summary of machine learning in healthcare (for the detail, go to PHG’s report Machine Learning Landscape).

Machine learning typically denotes “methods that only have task-specific intelligence and lack the broad powers of cognition feared when ‘AI’ is mentioned”. Artificial intelligence (AI) can be defined as “the science and engineering of making computers behave in ways that, until recently, we thought required human intelligence.” We are only beginning to realise the scope of intelligence that is silicone-based, rather than meat-based, in the reductionist words of neurscientist and author Sam Harris. It is important too to grasp the difference between types of programming. As this report puts it,

Machine learning as a programming paradigm differs from classical programming in that machine learning systems are trained rather than explicitly programmed. Classical programming combines rules and data to provide answers. Machine learning combines data and answers to provide the rules


Continue reading →

Removal of life support was in patient’s best interests and respected his autonomy

12 June 2020 by

Barnsley Hospital NHS Foundation Trust v MSP [2020] EWCOP 26 (1 June 2020)

COVID-19 has changed many things about society, and one of the most significant is the erosion of the taboo surrounding death. After all, we have daily bulletins on death figures. As Dignity in Dying Sarah Wootton says, in her forthcoming book “Last Rights”,

The coronavirus pandemic has thrust death and dying into the mainstream.

This sensitive and compassionate judgment by Hayden J following a remote hearing of the Court of Protection is therefore worth our attention, as we all become more aware of how acutely things slip out of our control, not least of all our health.

The application from the Trust concerned a 34-year-old man (MSP) who has had significant gastrointestinal problems for approximately 10 years, requiring repeated invasive surgery. At the time of the hearing he was unconscious and on life support in ICU. The issue framed in the application was whether the Trust should continue to provide ITU support or withdraw treatment other than palliative care.

Between 2013 and 2020 MST underwent significant abdominal surgery and had a stoma inserted in 2018. The court noted that he “utterly loathed” life with a stoma. He did express his consent to the stoma being inserted at the time, but this consent seemed entirely contrary to his unambiguous rejection of this procedure, expressed bluntly to three consultants with whom he had discussed it. It also appeared entirely inconsistent with everything he had said to his mother, father and step-sister on the point.

Significantly, on 4th February 2020 MSP had written a carefully crafted Advance Directive which he had copied to his parents and to his step-sister. Outside the hospital setting these were the only three people who knew MSP had a stoma. He did not even wish his grandmother to be told. In this Advance Directive he stipulated, among other things, that he would refuse the “formation of a stoma, through an ileostomy, colostomy, urostomy or similar, that is expected to be permanent or with likelihood of reversal of 50% or under”.


Continue reading →

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: