By: Rosalind English
11 October 2017 by Rosalind English
Conway, R (On the application of) v The Secretary of State for Justice [2017] EWHC 2447 (Admin) – read judgment
This case concerns the issue of provision of assistance to a person with a serious wasting disease who wishes to commit suicide, so as to be able to exercise control over the time of his death as the disease reaches its final stages. See our previous post on it here and here. It follows a line of cases which have addressed that or similar issues, in particular R (Pretty) v Director of Public Prosecutions [2001] UKHL 61; [2002] 1 AC 800 (“Pretty“), R (Purdy) v Director of Public Prosecutions [2009] UKHL 54; [2010] 1 AC 345 (“Purdy“) and R (Nicklinson) v Ministry of Justice [2014] UKSC 38; [2015] AC 657(“Nicklinson“). Permission to bring this judicial review was granted by the Court of Appeal (McFarlane and Beatson LJJ, see [2017] EWCA Civ 275), having earlier been refused by the Divisional Court (Burnett LJ, Charles and Jay JJ) at [2017] EWHC 640 (Admin
Section 1 of the Suicide Act 1961 abrogated the rule of law whereby it was a crime for a person to commit suicide. In this hearing Mr Conway sought a claim for a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 in respect of the prohibition in the criminal law against provision of assistance for a person to commit suicide. That prohibition is contained in section 2 of the Suicide Act 1961.
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1 October 2017 by Rosalind English
XX v Whittington Hospital NHS Trust 2017 EWHC 2318 (QB) (18 September 2017) [HQ15C04535]
Podcast about this case now downloadable
Commercial surrogacy arrangements are considered to be against public policy in the UK and therefore illegal. Surrogacy in the UK is only legal where there is no intention to make a profit – though reasonable expenses are recoverable. Where legal surrogacy is
carried out the surrogate mother is the legal mother of the child. In this case the claimant had suffered injury due to the hospital’s failure to diagnose her cervical cancer in time. She had to undergo chemotherapy and radiation treatment which, amongst other things, damaged her uterus so she was unable to bear and carry a child. Before the treatment she had her eggs frozen.
The hospital admitted negligence. As part of her damages claim she sought the expenses she would incur for a commercial surrogacy arrangement in California. She wished to go to the US since the position of a woman seeking surrogacy in the UK is made more difficult by the fact that commercial arrangements are illegal. This means that in the UK the surrogate chooses the biological mother, rather than the other way around. The lack of certainty over parental status was also cited as a reason why an arrangement in the US would be preferable.
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1 October 2017 by Rosalind English
You may remember the podcast discussion between me, Rosalind English, and David Hart QC earlier in the summer about the NHS decision not to fund the drug Kuvan for the amelioration of symptoms of a boy suffering from phenylketonuria (PKU) and severe autism. The podcast concerned a High Court ruling that the health service should review its decision not to fund the drug Kuvan.
As I mentioned in the original report, the judge did warn the boy’s family against being too optimistic, saying
however much one might hope that on the next occasion the panel will decide that the net additional expenditure of treating S with Kuvan would be justified … they could still lawfully decide to refuse funding.
However, the judge’s caution has not been borne out by events. On Friday 29th September it was reported that NHS England has agreed to provide the drug to treat his PKU, which if left unchecked can lead to complications including brain damage.
Listen to Episode 9 of Law Pod UK, available for download on iTunes
29 September 2017 by Rosalind English
... and pests are misplaced animals. We are all too familiar with the stories of mayhem caused by urban foxes released into the countryside, and the collapse in property value where Japanese knotweed is found to have invaded. The perpetrators of such damage are rarely identified and brought to account. So it is with a level of glee that the prosecution of two “Buddhist activists” has been reported in the media after they released nearly a thousand alien crustaceans off the coast of Brighton.
“Banker” Ni Li and “estate agent” Zhixong Li bought the live American lobsters and Dungeness crabs from a London fish merchant, hired three boats from Brighton Marina and cast the animals adrift as part of a religious ceremony, fangsheng, which is understood to be the cause of many ecosystem disruptions in Asia.
This short story is so replete with topical issues it is hard to know where to begin.
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3 September 2017 by Rosalind English
Clinical Genetics is a field of medicine concerned with the probability of an indvidual’s condition having an hereditary basis. The journal Medical Law International has just published an article about the scope of potential duties of care owed by specialists in this field to people with heritable diseases. The authors draw out the features of genomic medicine that open the door to new liabilities; a potential duty owed by clinicians to third party family members, and another legal relationship that may be drawn between researchers and patients.
Background
There is no legislation on the duties involved in genome sequencing in the United Kingdom, and, in the absence of this, any new legal duties on the part of professionals in clinical genomics need to be established within the common law of negligence. Civil lawyers are familiar with the standard framework for establishing whether a duty of care is owed, based on these three consecutive questions:
- Was the damage was reasonably foreseeable
- Was there was sufficient “proximity” between the claimant and the defendant and
- Would it be fair, just and reasonable to impose a duty: see Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618
These principles are neat enough as they are laid out but only take us as far as the facts of any particular case, particularly the Caparo test outlined in para (3).
This relatively new field of medical endeavour is unusual in that it is concerned with the management of a family rather than one individual. More generally, in the field of genomic medicine, there is a “close interaction between care and research”, resulting in “the real possibility” that genomics researchers will be found to owe a legal duty to disclose findings to participants.
So we have two new possible avenues of liability here; that of clinicians to third parties, and that of researchers to patients.
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1 September 2017 by Rosalind English
We have just posted a discussion here between 1 Crown Office Row recruit Thomas Beamont and Rosalind English on the reach of Artificial Intelligence into the legal world: click on Episode 10 of our podcast series.
Law Pod UK is freely available for download on iTunes
Related material:
21 August 2017 by Rosalind English
Richard Susskind, IT adviser to the Lord Chief Justice, has spent many years looking into the future of the law. In a fascinating podcast paving the way for his new book The Future of the Professions and the updated Tomorrow’s Lawyers, he discusses with OUP’s George Miller the new world of technological advancements in the day to day management of dispute resolution. We have taken the liberty of summarising the podcast here and posting a link to the interview at the end of this post.
Susskind finds, in comparison with the rest of the English speaking world, that the legal institutions of the UK are in some sort of denial about the march of AI. He maintains that the legal world will change more in twenty years than it has in the past two centuries. If we want to improve access to justice in our society, the answer is in technology. But the law schools have not caught up with this idea.
How do we work out what to do in the face of irreversible and inevitable change in the law? Susskind acknowledges that most people want to pay less for legal services, for something that is less complicated, less combative. It’s not that there’s less legal work to do, there’s more legal work to do, but it’s under cost pressure.
The twenties will be the big decade of change. The age of denial ended in 2016; leaders in law are no longer saying the legal world is going to go back to what it was in 2004-6. But the period from 2016 – 2020 is the area of resourcing, put bluntly, finding cheaper people to do the work by outsourcing, as manufacturing did years ago. Once we’re into the twenties, we’ve arrived in an area Susskind calls the decade of disruption. The challenge to lawyers will be to provide not only one to one services in the traditional way, but to work on systems that one day will replace us. The trusted advisor concept is not fundamental to the legal service. That was limited to the print world. The future of the professions is to imagine other ways in which these problems must be sorted out. When a client has a problem, and they say they want a trusted advisor, what they really want is access to reliable expertise, and this is being worked on in the field of AI. Our technology is becoming more and more capable. Future clients will happily go for that even if they lose the surrounding aura or trappings of a traditional legal advisor.
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18 August 2017 by Rosalind English
SB, R (on the application of NHS England) [2017] EWHC 2000 – read judgment
The High Court has quashed a decision by NHS England refusing to fund the drug Kuvan for a young boy who has a condition inhibiting his ability to digest protein.
This case involves a number of important issues, such as the allocation of resources under the NHS, the extent to which courts may interfere with healthcare choices, and the role of “rights” in these decisions, including the welfare of the child. David Hart QC discusses these issues in detail with Rosalind English in the latest podcast in our Law Pod UK series; here is a brief summary.
The seven-year-old child has severe autism and phenylketonuria (PKU), an inherited metabolic disorder. The mainstay of PKU treatment is a strict dietary regime which restricts the intake of high protein foods. But because of his autism, SB is unable to understand and therefore abide by these food restrictions. Consequently his doctors sought funding for the drug Kuvan (sapropterin dihydrochloride), which would allow him to get a proportion of vitamins and minerals from ordinary food. If he were to respond to the drug, the levels of protein in his blood would fall below the level at which he risked irreversible brain damage. However, his consultant acknowledged that his overall development outcome would mostly be affected by the severity of his autism rather than his PKU and that Kuvan would not be expected to significantly alter or improve his behaviour.​
The funding panel accepted that SB fulfilled the conditions for exceptional need but the lack of long-term prospects for improvement meant that his application did not pass the “clinical effectiveness” test.
Andrews J found that this decision was flawed and remitted it for reconsideration, with the caveat that the funding panel may be entitled to continue to decline treatment on different grounds.
Listen to Episode 9 of Law Pod UK, available for download on iTunes
9 August 2017 by Rosalind English
Just posted: Marina Wheeler QC in conversation with Rosalind English about efforts to preempt and limit the influence of extremist materials on children in the family courts. In this interview Marina also discusses the implementation of the government’s counterterrorism “Prevent” strategy against adults who are suspected of starting down a pathway towards terrorism but who have as yet committed no crime. The podcast is now available on iTunes as Episode 8 in our series.
To listen, click on the Law Pod UK banner on the top right hand of the home page. You can access this and other free episodes of Law Pod UK, including David Hart QC on the Brexit Bill and its implications for the environment. Read more about David Hart’s concerns about the potential loss of right to sue for breach of EU law under the rule in Francovich in The Times: https://www.thetimes.co.uk/article/brexit-bill-will-remove-right-to-sue-government-750dhfjj3?shareToken=09ea60e3150edafe920c43e542df0351
4 August 2017 by Rosalind English
Butt v Secretary of State for the Home Department [2017] EWHC (Admin) 26 July 2017 – read judgment
Oliver Sanders and Amelia Walker acted for the Home Secretary in this case. They have nothing to do with the writing of this post.
The High Court has thrown out a number of challenges to the government’s efforts to prevent extremism on university platforms.
In 2015 the Home Office released guidance regarding its initiative to tackle extremism in universities under the Counter-Terrorism and Security Act 2015, CTSA. The press release referred to 70 events on campuses featuring “hate speakers”. The claimant Dr Butt was among six named as “expressing views contrary to British values”.
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3 August 2017 by Rosalind English
Marches are popular in Belfast, and now is the marching season. Since the decline of sectarian violence in Northern Ireland these displays of loyalty have ceased to attract the controversy they did. Until this week, at least, in the run up to the Belfast Pride march on Saturday 5 August. The Irish Times reports that uniformed gardaà from the Republic of Ireland are due to join their Police Service of Northern Ireland colleagues, also in uniform, at this year’s gay pride parade in Belfast on Saturday.
The PSNI already has confirmed that for the first time its members will be permitted to parade at the Belfast Pride event in uniform. Previously they could march in civilian clothing only.
Now the PSNI has invited the Gardai to accompany them at the parade, an invitation that has been accepted. PSNI vehicles with signs reading “Policing with Pride – Hate Crime is Unacceptable – To Stop It, Report It” will feature at Pride events in Belfast, Newry and Derry.
The local press is loud with criticism of this decision, which, it is said, privileges LGBT discrimination over other forms of hate crime. Critics have pointed out that the PSNI would be “unlikely” to allow uniformed officers to take part in a Christian march that expressed a view that homosexuality was a sin. The PSNI is governed by a code of neutrality, and they are prohibited from participating in political protests.
The PSNI are supposed to be neutral and are prohibited by their own code of ethics from participating in political activity. There is also a duty on the PSNI, under article 6.2 of their code of ethics, to treat all persons equally regardless of status. Loyalists have claimed that there is no community that has experienced more hate crime than the Orange community, with hundreds of arson and criminal damage attacks on their halls. “But no one is suggesting that the PSNI should show opposition to these crimes by participating in Orange parades,” Jim Allister of the Traditional Unionist Voice added. Other voices from the loyalist sector have asked whether the “liberal left” would be
so supportive of the PSNI marching alongside a loyalist flute band with a banner saying “End the hatred of Orange culture – report all attacks on Orange Halls”?
The parade, which campaigns, amongst other things, for the legalisation of gay marriage in Northern Ireland, is marked as sensitive on the Parades Commission website. For this reason questions have been raised about the practical consequences of police participation; how can the event be impartially policed when uniformed officers are amongst the marchers?
Northern Ireland is the only region of the UK where gay marriage remains outlawed.
25 July 2017 by Rosalind English
Great Ormond Street Hospital v Yates and Gard –Â [2017] EWHC 1909 (Fam) – read judgment
“A lot of things have been said, particularly in recent days, by those who know almost nothing about this case but who feel entitled to express opinions. Many opinions have been expressed based on feelings rather than facts.”
So said Francis J, when dealing with an unusual application by Great Ormond Street Hospital (Gosh) asking for an order, rather than a declaration, that Charlie Gard should be allowed to slip away quietly.  The involvement of the White House, the Vatican, the Bambino Gesu Children’s Hospital in Rome and Dr. Hirano and the associated medical centre in the USA  in this story demonstrates the fact that a mere declaration carries too much ambiguity to allow the hospital staff to do what the courts have approved. The terms in which Gosh put its application were unambiguous indeed:
Therefore orders are sought to remove any ambiguity; orders are enforceable. Despite all of the hospitals best endeavours, this appears as potentially necessary. Not for the first time the parents through their solicitors raised the prospect of criminal proceedings against the hospital and its staff. The Hospital understands that no court order best interests proceedings can afford it or its staff from prosecution.
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11 July 2017 by Rosalind English
Campaign against Arms Trade, R(on the application of) v The Secretary of State for International Trade [2017] EWHC 1754 (Admin) – read judgment
Angus McCullough QC acted as Special Advocate supporting the Claimant in this case. He is not associated with the writing of this post.
A challenge to the legality of UK’s sale of arms to Saudi Arabia has failed. The claim sprang from the conflict in Yemen and the border areas of Saudi Arabia. It focussed on airstrikes conducted by a coalition led by Saudi Arabia in support of the legitimate government of Yemen against the Shia-led Houthi rebellion. UK arms export policy states that the government must deny licenses for sale of arms to regimes if there is a ‘clear risk’ that the arms ‘might’ be used in ‘a serious violation of International Humanitarian Law. This in turn is based on the EU Common Position 2008/944/CFSP on arms export control, which explicitly rules out the authorising of arms licences by Member States in these “clear risk” circumstances.
The claimant argued that the body of evidence available in the public domain not only suggested but dictated the conclusion that such a clear risk exists. It was therefore no longer lawful to license the sale of arms to Saudi Arabia.
The High Court dismissed their claim. The CAAT intends to appeal this decision.
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7 July 2017 by Rosalind English
The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent) [2017] NICA 42 (29 June 2017) – read judgment
Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times. The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.
Let me start with a much quoted proposition derived from Strasbourg law.
when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.
Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:
the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.
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6 July 2017 by Rosalind English
1 Crown Office Row have launched a new regular podcast, Law Pod UK, with presenter Rosalind English, to discuss developments across all aspects of civil and public law in the UK.
It comes from the creators of the UK Human Rights Blog and is produced by the barristers at 1 Crown Office Row. Post production by Whistledown Studios.
Episode 5: Further ruling on NI abortion rights, Charlie Gard, and transgender in Ultra-Orthodox Jewish community (6 July 2017).
Sarah Jane Ewart and Rosalind English discuss the latest developments in access to abortion for Northern Irish women, the lessons to be learned from the Charlie Gard case, and the difficult decision that the courts had to reach when considering the best interests of children in an Ultra-Orthodox Jewish family, where the father had left the community as a transgender person.
Episode 4: Supreme Court rules on NI abortion case (19 June 2017)
Rosalind English discusses the recent Supreme Court judgement on the case of women from Northern Ireland who seek abortions on the NHS in England.
Episode 3: Negligence Ruling in Meningitis case (28 May 2017)
David Hart QC and Rosalind English discuss the implications of a recent negligence case involving a young doctor’s failure to diagnose a child with meningitis.
Episode 2: Female terror plot trial, legal aid for unaccompanied minors, Value For Justice & post-Brexit legal landscape (18 May 2017).
Sarah Jane Ewart and Rosalind English discuss the prospect of the first all female terror plot trial, legal aid for unaccompanied minors in immigration cases, the Bar Council’s manifesto “The Value of Justice”, the law post-Brexit, and shift sleeping and the minimum wage
Episode 1: Election pledges on human rights, citizenship for third country EU nationals, CAGE case latest (26 May 2017).
Poppy Rimington-Pounder and Rosalind English discuss party election pledges and the Human Rights Act, the Muslim advocacy group CAGE’s forthcoming legal battle, a freedom of conscience ruling for members of the armed forces in the Bahamas, and citizenship rights for the children of third country nationals in Europe.
You can subscribe to Law Pod UK via Audioboom here. They will shortly be available for subscription and download from iTunes.
Please get in touch if you would like to collaborate on any future episodes.
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