By: Rosalind English
30 September 2015 by Rosalind English
Sea Otters
California Sea Urchin Commission, et al. v Michael Bean, et al, US District Court, Central District of California (September 18 2015) – read judgment
A Californian court has upheld the protection of marine otters over the interests of commercial fishing.
Sea otters are remarkable marine mammals who live their entire lives at sea, giving birth in the water and clutching their cubs to their bellies as they float in rafts of up to a thousand, holding hands while they sleep to avoid drifting off in the ocean’s currents. But they are not just picturesque; they are essential to the health of the seas. A main component of their diet is the ubiquitous sea urchin, which feeds on kelp. As sea otters have been hunted and killed as by-catch over the centuries, their diminishing numbers have led to the proliferation of the sea urchin population and the consequent disappearance of the kelp forests on the seabed. The damage this does to the marine ecosystem has been inestimable.
This somewhat technical judgment, made on a preliminary application for summary judgment by the fishing industry, therefore marks an important step in the judicial response to marine conservation.
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17 September 2015 by Rosalind English
Brett Wilson LLP v Person(s) Unknown, Responsible for the Operation of the Website solicitorsfromhell.co.uk, 7 September (Warby J) [2015] EWHC 2628 (QB) – read judgment
This was a claim in libel by a firm of solicitors who acted for another firm which also claimed against the operators of SFHUK, causing the original site to be shut down (Law Society v Rick Kordowski [2011]). In this case the words complained of appeared on a new site, but despite efforts by the present claimants, it was not possible to find out who was operating it. The site alleged various aspects of mismanagement, including incompetence and fraud. It also quoted a client of the claimant firm who alleged overcharging and who refused to pay their fees. (It is worth noting that the site appears to have been taken down since default judgement was given in this case)
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16 September 2015 by Rosalind English
Updated: Well, not exactly. But the outrage attending Jeremy Corbyn’s appointment of animal welfare campaigner Kerry McCarthy to the shadow DEFRA post betrays a level of panic which defies logic. What is wrong with someone concerned with humane animal husbandry being in charge of those who regulate it? See Maria Chiorando’s “A vegan shadow agriculture minister is a good move for farming” for a sane assessment of this particular episode in the post-Corbyn drama.
The timing is perhaps apt: The picture to the left depicts a cow awaiting her slaughter after a long journey through Europe. To register your objection to this practice, join Compassion in World Farming on 9th October in London: https://www.facebook.com/events/141120356236597/
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16 September 2015 by Rosalind English
DL v SL [2015] EWHC 2621 (Fam) 27 July 2015 (Mostyn J) – read judgment
This was a simple, if contentious, divorce case in which the judge took the opportunity to make a point about balancing the principle of open judgment – allowing media coverage of cases – against the privacy of the parties involved. Whilst he was ready to acknowledge that publicity ensures not only the probity of the judge but the veracity of the witnesses, and that such publicity served promote understanding and debate about the legal process, in some cases privacy should trump the rights of the press.
There are many cases which are heard publicly, or privately with the media in attendance, but where, by a process of anonymisation, the privacy of the parties, and of their personal and other affairs, is sought to be preserved. This compromise, or balance, between open justice and the privacy of the individual has arisen for two reasons. First, the increased recognition that is given to the interests of children who are caught up in the dispute between the adult parties. And secondly, the rise of the idea that privacy is an independently enforceable right.
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11 September 2015 by Rosalind English
A and others (In the matter of the Human Fertilisation and Embryology Act 2008) – read judgment
This case is best summed up in Sir James Munby’s own words:
This judgment relates to a number of cases where much joy but also, sadly, much misery has been caused by the medical brilliance, unhappily allied with the administrative incompetence, of various fertility clinics. The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem.
These cumulative cases
must raise questions as to the adequacy if not of the Human Fertilisation and Embryology Authority’s regulation then of the extent of its regulatory powers. That the incompetence to which I refer is, as I have already indicated, administrative rather than medical is only slight consolation, given the profound implications of the parenthood which in far too many cases has been thrown into doubt. This is a matter I shall return to at the end of this judgment.
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8 September 2015 by Rosalind English
Parrillo v Italy (application no. 46470/11) Grand Chamber of the European Court of Human Rights, [2015] ECHR 755 (27 August 2015) – read judgment
The Grand Chamber of the Strasbourg Court has ruled that the Italian ban on the donation of embryos obtained by IVF procedures to scientific research was within Italy’s margin of appreciation and therefore not in breach of the applicant’s right of private life and autonomy, even though she was willing to give the embryos to scientific research, since she no longer wanted to proceed with pregnancy after her partner was killed covering the war in Iraq. By donating these cryopreserved embryos to research she would, she argued, make an important contribution to research into medical therapies and cures.
A strong dissent to the majority judgment is worth pointing up at the outset. The Hungarian judge, Andras Sajó, found Italy’s general ban quite out of order. Not only did it disregard the applicant’s right to self-determination with respect to an important private decision, it did so in an absolute and unforeseeable manner.
The law contains no transitional rules which would have enabled the proper authority to take into consideration the specific situation of the applicant, whose embryos obtained from the IVF treatment were placed in cryopreservation in 2002 and whose husband passed away in 2003, three months before the law entered into force.
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27 August 2015 by Rosalind English
London Borough Tower of Hamlets v B [2015] EWHC 2491 (Fam) 21 August 2015 – read judgment
When a judge waxes lyrical about a child, garlanded with starred GCSEs, their intelligence, their medical school ambitions, you wonder what is coming. It’s the judicial equivalent of those blurred reproductions in the press of murder victims’ graduate portraits. In this case, a sixteen year old girl “B”, the subject of a careful but nevertheless alarming judgment in the Family Division, turned out to be one of the many girls groomed by their family for exodus to Syria; all of whom appear to be:
intelligent young girls, highly motivated academically, each of whom has, to some and greatly varying degrees, been either radicalised or exposed to extreme ideology promulgated by those subscribing to the values of the self-styled Islamic State.
B herself seemed unoppressed by the situation she was in and indeed wrote to the judge in those terms. She and her family refused to give evidence and sat impassively whilst Heydon J gave judgment.
They have betrayed no emotion; they have been impassive and inscrutable as I have faced the challenge of deciding whether their family should be fragmented and their children removed. Their self discipline is striking. They have listened carefully. The mother has taken careful notes. They have revealed nothing in their responses.
These cases differ from the common run of family abuse cases in that these young women, in the judge’s words, have “boundless opportunities, comfortable homes and carers who undoubtedly love them”. But they have been seduced by a belief that travelling to Syria to become what is known as ‘Jihadi brides’ is somehow romantic and honourable both to them and to their families.
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25 August 2015 by Rosalind English
A hand of applause for our Chief Ed Adam Wagner who’s just been shortlisted for the 2015 Liberty Human Rights Lawyer of the Year Award in recognition of his innovative efforts to bring human rights to life by correcting misinformation and explaining why human rights matter for everyone – the full list of nominees is here.
Adam Wagner founded the UK Human Rights Blog five years ago and more recently the new human rights information project RightsInfo, indefatigably combining all this writing and editing with his busy career as a barrister.
As Liberty’s press release says,
The barrister and campaigner has devoted his time and energy to debunking the myths which have grown up around our Human Rights Act, making the law more accessible to all in the process.
The Liberty Human Rights Awards celebrate the achievements of organisations and individuals from all walks of life who have worked tirelessly to protect and promote fundamental freedoms at a time when the post-war human rights consensus faces an unprecedented attack.
The award ceremony is open to the public (you can get tickets here) and will take place on 7 September at London’s Southbank Centre. It will be hosted by writer, actor and comedian Jo Brand.
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4 August 2015 by Rosalind English
Kent & others v Arun District Council and others [2015] EWHC 2295 – read judgment
Iain O’Donnell of 1COR acted for the Council in this case: he played no part in the writing of this post.
This case concerned the application of the law in relation to future conduct, in particular, the role of the judicial review procedure in determining what precisely is meant by the prohibition on the selling of live animals under the Pet Animals Act 1951.
This is a detailed statutory provision inspired by welfare and conservation concerns. It has a complicated legislative history, and essentially the judge hearing the application was being asked to decide whether certain future activities might be caught by it.
For the record, the statute was introduced to protect the welfare of animals sold as pets. It requires any person keeping a pet shop to be licensed by the local council, which will only license such a business if they are satisfied as to the suitability of the accommodation, nutrition and safety of the animals concerned. Section 2 bans the selling of animals in the street, including on barrows and markets.
Councils are responsible for enforcing the law in this area.
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19 July 2015 by Rosalind English
IS (by the Official Solicitor as Litigation Friend) v The Director of Legal Aid Casework and Anor [2015] EWHC 1965 (Admin) (15 July 2015) – read judgment
Collins J has ruled that the Legal Aid guidance as to whether to provide exceptional funding in certain cases is so rigid and complicated as to be unlawful.
Although no declaration has been made in terms, he said that the scheme as operated was “not providing the safety net promised by Ministers and is not in accordance with [the relevant statute] in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached.”
The actual case before him concerned a defendant who had in fact been granted legal aid consequent to an earlier decision by the Appeal Court. There were five other claims which raised similar issues in relation to the guidance and in which the individual claimants asserted that there had been a wrongful refusal of Exceptional Case Funding under Section 10(3) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). It was ordered that the six claims should be heard together to deal with the individual circumstances of each claimant and the attack on the guidance. The claims came before the same judge, Collins J, and on 13 June 2014 he granted judicial review in each of the six cases. His decision was appealed to the Court of Appeal by the defendants, but in this case the appeal was discontinued. The cases were reported under the title of R (Gudanaviciene) v. DLAC and Lord Chancellor (read my previous post on the Court of Appeal’s decision).
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30 June 2015 by Rosalind English
Jack Lowe and Dennis Reynolds, Plaintiffs v Atlas Logistics Group Retail Services
The first prosecution under the 2008 US Genetic Information Nondiscrimination Act (GINA) has won $2.25 million jury damages for the individuals involved .
I have posted about genetic discrimination here and here. In the US some of these problems have been foreseen and legislated against: GINA prohibits discrimination against healthy individuals for employment decisions or health insurance purposes on the basis of genetic information alone; it also prevents employers and insurance providers from demanding or using information from genetic tests.
The law does include limited exemptions, however. Forensic laboratories can ask workers for their DNA to check that employees’ genetic material does not contaminate the genetic samples that they analyse.
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26 June 2015 by Rosalind English
Bournemouth Borough Council v PS and another [2015] EWCOP (11 June 2015) – read judgment
Mostyn J in the Court of Protection was asked to determine whether care arrangements in place for a 28-year-old man (BS) with severe autism and who lacked capacity constituted a deprivation of his liberty. He concluded that the care arrangements in place were in his best interests and did not constitute a deprivation of his liberty under Article 5 of the ECHR. Although he was subject to observation and monitoring in his own home he was not under continuous supervision and he was afforded appreciable privacy; there were no locks on the doors and he was free to leave.
Interestingly, comments made in this case shows that judges, or some of them, do engage with what is being said about them in the blogosphere.
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20 June 2015 by Rosalind English
British Academy of Songwriters, Composers and Authors and others, R(on the application of) v Secretary of State for Business, Innovation and Skills and another [2015] EWHC 1723 (Admin) – read judgment
An exception to copyright infringement for private use has failed to survive a challenge in the High Court. But this may not be the end of the story. Although he accepted part of the claimants’ contentions, Green J observed that
the Claimants’ argument does not sit well or easily with the very unusual and particular circumstances which have led to the decision to introduce the private use exception in the first place. These are that the advent of digitalisation has led to a market where device sellers and consumers assume they may copy and where rightholders have not sought private law remedies against infringers.[my italics]
It is a particular feature of this case that there is a widespread consensus that the law has signally failed to keep up with market reality and with reasonable consumer expectations and indeed has been brought into disrepute by its condemnation as illegal of activities which are now accepted by consumers as lawful and which in actual fact form the basic commercial premise upon which copying and storage devices are actively sold throughout Europe.
Having upheld a small part of the challenge, Green J will now hear submissions as to what flows from this conclusion and from the judgment generally. In particular he will hear submissions as to whether any issue of law that he had decided should be referred to the Court of Justice and if so as to the question(s) that should be asked.
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16 June 2015 by Rosalind English
Lambert and Others v. France (application no. 46043/14) – read judgment
In an important step away from Pretty v UK, the Grand Chamber of the Strasbourg Court has upheld the right of to die with dignity by ruling that there would be no violation of Article 2 (right to life) of the European Convention on Human Rights if artificial nutrition and hydration were to be withdrawn from a patient in a persistent vegetative state.
Although the facts were very different, it is heartening to see Strasbourg at last allowing the argument that the state’s obligation to protect life also involves a duty to respect people’s rights to exit life with dignity. The importance of this ruling cannot be underestimated, as can be seen in the ferocity of dissent set out in the Separate Opinion annexed to the judgment (discussed at the end of this post.)
The case involved a challenge by some of the patient’s family members to a judgment delivered on 24 June 2014 by the Conseil d’État which authorised this step. The following summary of the facts and judgment is based on the Court’s press release.
Background facts
Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. At the time of this hearing he was in the care of a hospital which specialises in patients in a vegetative or minimally conscious state.In 2011 his condition was characterised as minimally conscious and in 2014 as vegetative. He receives artificial nutrition and hydration which is administered enterally, through a gastric tube.
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3 June 2015 by Rosalind English
mike 0010
Léger (Judgment) [2015] EUECJ C-528/13 (29 April 2015) – read judgment
Blood donation centres all over Europe are grateful for volunteers, but sometimes people don’t make it through the assessment process. Restrictions on male homosexual blood donors are particularly tricky, because they fly in the face of equality, whilst reflecting our current, no doubt inadequate, understanding of how infectious diseases are transmitted, and how long pathogens remain viable in human blood.
This case started when a French citizen, M. Léger, presented himself at his local blood donation centre. He was turned down after interview. The relevant law in France implements two EU Directives on blood donation which lay down specific conditions regarding eligibility.
Legal background
This was a request to the European Court (CJEU) for a preliminary ruling on Directive 2002/98/EC which imposes safety standing on the collection of blood for therapeutic use (the “Blood Directive”). It requires that blood should only be taken from individuals “whose health status is such that no detrimental effects will ensue as a result of the donation and that any risk of transmission of infectious diseases is minimised”. It also states that potential donors should be assessed by way of interview for their suitability.
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