By: Rosalind English
7 June 2014 by Rosalind English
McDonald v United Kingdom [2014] ECHR 942 (20 May 2014) – read judgment
The Strasbourg Court has ruled that local authorities are within their margin of discretion to balance individuals’ personal interests against the more general interest of the competent public authority in carrying out their social responsibility of provision of care to the community at large.
Background
The applicant, who suffered from an incapacitating stroke in 1999, required assistance with all transfers and mobilisation. Disabled persons have an individual right to certain services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970, and under the 1990 National Health Services and Care Act to require an assessment of needs from their local authority.
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2 June 2014 by Rosalind English
UPDATE | The 1COR event which this post previously referred to is now full, so please do not turn up unless you have registered.
Sheffield Teaching Hospitals NHS Foundation Trust v TH and Anor [2014] EWCOP (22 May 2014) – read judgment
In a careful and humane judgment, the Court of Protection has demonstrated that the law is capable of overlooking the stringent requirements of the conditions governing advance directives, and stressed that a “holistic” view of the patients’ wishes and feelings must be adopted, if those point to the withdrawal of life saving treatment.
Background
TH was admitted to the Northern General Hospital in Sheffield earlier this year. His general health revealed a background of known alcohol excess, and he had suffered neurological damage involving seizures and severe depression of consciousness.
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23 May 2014 by Rosalind English
The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others [2014] EWHC 1662 (QB) 23 May 2014 – read judgment
The facts of this application for judicial review were set out in David Hart QC’s post on the original permission hearing. To recap briefly, the Plantagenet Alliance, a campaigning organisation representing a group of collateral descendants of Richard III were given the go ahead to seek judicial review of the decision taken by the respondents – the Secretary of State, Leicester Council and Leicester University, regarding his re-interment at Leicester Cathedral without consulting them. More specifically, the claimant’s main case was that there was an obligation, principally on the part of the Ministry of Justice, to revisit or reconsider the licence once the remains had been conclusively identified as those of Richard III.
The Divisional Court (of three judges) unanimously rejected this argument on all grounds. It could not be said in public law terms that the Secretary of State failed to act as a reasonable or rational decision-maker when deciding not to revisit the exhumation licence in the light of the information which he already had. The Court hammered the final nail on the consultation coffin by declaring that there was
no sensible basis for imposing a requirement for a general public consultation, with leaflets, on-line petitions, publicity campaigns, nor for advertisements trying to ascertain who is a relative and then weighing their views against the general public, when there are, in reality, only two possible contenders (Leicester and York)
A short summary of the decision in Bancoult follows.
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22 May 2014 by Rosalind English
Case C-131/12 Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González – read judgment
The CJEU has declined to follow Opinion of AG Jääskinen in this case involving a challenge under the 1995 Data Protection Directive by a lawyer who objected to a newspaper reference referring to old bankruptcy proceedings against him in a Google search. See my earlier post on the opinion. Lorna Woods’ excellent report on the CJEU’s reasoning can be found on Inforrm’s blog so I won’t replicate her effort here. Suffice it to say that the outpouring of indignation in the press, the references to “hundreds” of requests from celebrities and other people who want to stop harmful information about them appearing, suggests that this ruling has opened a can of worms, not to mention the byzantine difficulties of enforcing the ruling by requiring search companies to become their own data control regulators.
20 May 2014 by Rosalind English
Paulet v United Kingdom Paulet (application no. 6219/08) – read judgment
The Strasbourg Court has declared, by five votes to one, that the UK authorities had acted unlawfully by seizing the wages of an Ivorian worker who used a false passport to gain employment. The majority ruled that the UK courts should have balanced individual property rights against interests of the general public.
This case on the confiscation of the proceeds of crime raises many difficult legal questions such as the nature of the link between the crime and the proceeds and the distribution of the burden of proof in establishing this link. Mr Paulet complained that the confiscation order against him had been disproportionate as it amounted to the confiscation of his entire savings over nearly four years of genuine work, without any distinction being made between his case and those involving more serious criminal offences such as drug trafficking or organised crime. The Court found that the UK courts’ scope of review of Mr Paulet’s case had been too narrow. The majority objected to the fact that the domestic courts had simply found that the confiscation order against Mr Paulet had been in the public interest, without balancing that conclusion against his right to peaceful enjoyment of his possessions as required under the European Convention.
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12 May 2014 by Rosalind English
G (Adult), Re [2014] (Associated Newspapers Limited intervening) EWCOP 1361 (1 May 2014) – read judgment
Sir James Munby, President of the Court of Protection has ruled that the Daily Mail has no standing to be joined as a party in welfare proceedings in relation to a vulnerable adult who has been declared by the courts as lacking capacity under the Mental Capacity Act.
Background to the application
The court was concerned with a 94 year old woman, a British African Caribbean who lives in her own home in London. G is 94 years old. G has never married and has no children. She has no family living in the UK. She suffers from conditions that have limited her mobility; arthritis, rheumatism, a dislocation of her left knee and carpal tunnel syndrome. She also has high blood pressure and double incontinence. G rarely leaves home now, except for hospital appointments.
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9 May 2014 by Rosalind English
A (Respondent) v British Broadcasting Corporation (Appellant) (Scotland) [2014] UKSC 25 – read judgment
This appeal related to whether the Scottish Courts took the correct approach to prohibit the publication of a name or other matter in connection with court proceedings under section 11 of the Contempt of Court Act 1981, and whether the court’s discretion was properly exercised in this case. The Supreme Court unanimously dismissed the appeal by the BBC.
The following report is based on the Supreme Court’s Press Summary. References in square brackets are to paragraphs in the judgment.
Background
A, a foreign national, arrived in the UK in 1991. He was later granted indefinite leave to remain, but in 1996 was sentenced to four years’ imprisonment for sexual offences against a child. In 1998, he was served by the Home Secretary with a notice to make a deportation order [4]. He appealed against the decision and protracted proceedings followed in which A cited risks due to his status as a known sex offender of death or ill-treatment (contrary to Articles 2 and 3 of the European Convention on Human Rights should he be deported. A’s identity was withheld in the proceedings from 2001 onwards [5]-[9].
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6 May 2014 by Rosalind English
R v Scott Crawley and others – read judgement
A judge has halted a serious fraud trial after defendants claimed they could not get adequate representation because cuts to legal aid, and as a result they would not get a fair trial under common law or Article 6 of the Convention. This case could be the first of a number of reversals following the government’s legal aid reforms with seven further trials due to start before September 2015 involving 28 defendants in similar positions.
The defendants were charged with offences of conspiracy to defraud, possessing criminal property and offences where the evidence was complex and substantial. The the case against the five men amounted to more than 46,000 pages of documents and the case summary itself covered 55 pages. In essence, the Crown alleged that the defendants had been involved in a fraudulent land selling scheme. Some purchasers were given good title, some were not, and some sub-plots were sold more than once. Various interventions by the FSA (as it then was) to stop the practices were subverted by transferring the fraudulent scheme to a new company.
Background
In July the Legal Aid Authority notified the parties that the case had been classified as a Very High Cost Case (VHCC).Shortly after this the Ministry of Justice (“MoJ”) announced their intention to cut fees paid to counsel by 30%. The Bar announced their dissatisfaction with this decision and their intention to undeem VHCC cases.
During this same period the MoJ and the Bar were negotiating over proposed reductions in graduated fees. The Public Defender Service (“PDS”), a department of the LAA, began actively to recruit a pool of employed advocates to take on work that might otherwise have been done by independent advocate.
At a hearing on 14th November 2013 the defence raised concerns that they would not have counsel for the trial and that there was insufficient time for any counsel who might now be instructed to be ready by April 2014. By the end of November all counsel had returned their briefs.
In this hearing Alex Cameron QC appeared bro bono to advance the argument on behalf of the defendants that Leonard HHJ should stay the proceedings because they are unrepresented through no fault of their own and that he should not grant an adjournment because the possibility that at some unknown date in the future an adequately funded advocate may become available is no basis on which to grant an adjournment. The Crown accepted that involuntary lack of representation would be inconsistent with the European Convention on Human Rights and common law rights and they acknowledged that a fair trial could not be held now. But they submitted that there was a reasonable prospect that advocates would be available to represent the defendants in the future and that the judge should adjourn the trial to a future date rather than staying the indictment. A stay as an abuse of process is an exceptional remedy, but nor should the defendants in this case become “victims of a dispute between the Bar and the government” (para 24):
my decision on how to proceed in this case is taken without regard to the continuing dispute between the Bar and the MoJ. I am only concerned with the merits of the arguments put before me and to ensure that a trial is only held if it can be conducted fairly in accordance with the principles long established in this country and which are, additionally, enshrined in Article 6 of the European Convention on Human Rights.
The efforts to find representation included contact with 70 sets of chambers with barristers who hold themselves out as competent to undertake this sort of work in and outside London. By 15th January 2014 there was one silk who put himself forward as willing to accept instructions. He withdrew on 16th January. Enquiries were made without success with the Bar of Northern Ireland and the Faculty of Advocates in Edinburgh.
The efforts put in by the defence to find trial advocates had been, in the judge’s words, “very substantial indeed” and in the end, unsuccessful. There was no compromise solution in this case:
Criminal trials of this complexity rely on the skills of highly competent and experienced advocates on both sides to reduce issues, make matters understandable to a jury and keep trials to a reasonable length.
The judge was referred to Croissant v. Germany (1993) 16 E.H.R.R. 135 in respect of the right to a choice of representation where the state pays for legal assistance.In that case it was considered sufficient that the court appoints a lawyer to defend and individual; the right of a defendant to choose his own counsel cannot be considered absolute. In the present case the judge was of the view that the defendants could not hold out for independent counsel of their choice to become available.
In determining whether he should grant an adjournment rather than the more drastic remedy of a stay, Leonard HHJ had to consider a number of factors:
- Failure to grant an adjournment will deprive the victims of crime of the opportunity to see those that they judge responsible prosecuted.To deny them that opportunity should not be lightly taken.
- Against that, there are other methods available to the victims to recover their losses civilly and there are other regulatory offences which could be brought against the defendants which may not meet the gravamen of the conduct alleged but which could mark out their alleged misconduct and prevent them from being able to take a rôle in corporate activity in the future.
- On the other hand, the responsibility to provide adequate representation at public expense is also the responsibility of the State. I have considered whether the State should in those circumstances be entitled to benefit from its own failure by being granted an adjournment.
- An adjournment of the trial would involve an additional stress on the State’s provision of resources to try crime.
In view of the availability of barristers and the preparation time required the judge was not satisfied that sufficient advocates would be available to assist these defendants at trail, nor did he have any reason to think that there was a realistic prospect tha the Bar would accept contracts in VHCC cases on the present MOJ terms.
Having considered all these matters he was compelled to conclude that, to allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place now amounts to a violation of the process of this court. He further found that there was no realistic prospect that sufficient advocates would be available for this case to be tried in January 2015 from any of the sources available to the defence, including the PDS.
Speaking to The Independent, a spokesman for the Ministry of Justice said: “Barristers have refused to work on this case – and a number of other Very High Cost Court Cases – because they do not agree with savings the Government is making to legal aid.
Even after the savings, if a QC picked up a case like this one, they could expect to receive around £100,000 for working on it, with a junior barrister receiving around £60,000.
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30 April 2014 by Rosalind English
L.H. v Latvia [2014] ECHR 453 (29 April 2014) – read judgment
The release of confidential patient details to a state medical institution in the course of her negotiations with a hospital over a lawsuit was an unjustified interference with her right to respect for private life under Article 8.
Background
In 1997 the applicant gave birth at a state hospital in Cēsis. Caesarean section was used, with the applicant’s consent, because uterine rupture had occurred during labour. In the course of that surgery the surgeon performed tubal ligation (surgical contraception) without the applicant’s consent.
In 2005, after her attempt to achieve an out-of-court settlement with the hospital had failed, the applicant initiated civil proceedings against the hospital, seeking to recover damages for the unauthorised tubal ligation. In December of 2006 her claim was upheld and she was awarded compensation in the amount of 10,000 Latvian lati for the unlawful sterilisation.
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28 April 2014 by Rosalind English
Wang Yam v Attorney General [2014] EW Misc 10 (CCrimC) 27 February 2014 – read judgment
It is for the UK government to decide whether to vary an order preventing publication of material heard in private in a murder trial, if the offender goes on to petition the European Court of Human Rights. It is not for the Strasbourg Court to determine whether the right to a fair trial should outweigh the risks to UK national security reasons.
The question regarding a state’s obligation not to impede the right of individual petition to Strasbourg arose where the applicant offender applied for an order permitting him to refer to material, which had been restricted on national security grounds during his murder trial, in an application to the European Court of Human Rights.
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23 April 2014 by Rosalind English
Ashworth and others v the Royal National Theatre [2014] 1176 – read judgment
Anyone who saw one of the early performances of War Horse in its first season at the National Theatre will remember how profoundly moving was the live music, with the musicians visible along the sides of the theatre above the stage. Since that highly successful (and profitable) first season the role of the orchestra had been radically reduced, and now looks as if it is about to vanish altogether.
Background
War Horse opened at the Olivier Theatre in 2007, but since 2009 it has played at the New London Theatre. The claimants were engaged in March 2009 to play their instruments in the new production, as a small company of wind players accompanying recorded music. Productions of War Horse in other parts of the world have relied wholly on recorded music. In light of that, and because both the co-director of War Horse and the composer concluded that it was better for accuracy and impact to deliver the score through recorded music. The National Theatre sent the claimants letters giving notice of termination of their contracts to expire on 15 March 2014. In the letters the National Theatre stated that the grounds were redundancy.
The dispute
The claimants sought an order from the court, prior to the trial of the main action, to require the National Theatre to continue to engage them in the production of War Horse until the trial of their claim. They also relied upon the right to artistic expression protected by Article 10 of the human rights Convention.
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18 April 2014 by Rosalind English
Rose, R (on the application of) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) 15 April 2014 – read judgment
Jeremy Hyam of 1 Crown Office Row represented the claimant in this case. He had nothing to do with the writing of this post.
There are times when individual need comes up against the inflexible principles of the law and the outcome seems unjustifiably harsh. This is just such a case – where a relatively modest claim based on individual clinical need was refused with no breach of public law principles. As it happens, since the Court rejected her case, the the young woman concerned has been offered private support for the therapy she was seeking. The case is nevertheless an interesting illustration of the sometimes difficult “fit” between principles of public law and the policy decisions behind the allocation of NHS resources.
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14 April 2014 by Rosalind English
Smith, R (on the application of v Secretary of State for Justice and G4S UK Ltd [2014] EWCA Civ 380 – read judgment
This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.
The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.
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10 April 2014 by Rosalind English
Wandsworth Clinical Commissioning Group v IA (By the Official Solicitor as his Litigation Friend) [2014] EWHC 990 (COP) 3 April 2014 – read judgment
This was a case about determination of mental capacity, which both judge and counsel described as “particularly difficult and finely balanced”. The judge was confronted with a great deal of conflicting evidence about the capabilities of the individual in question, but concluded in the end that
His capacity may be seen to have fluctuated in the past; this is in my judgment more likely to be attributable to transient cognitive dysfunction due to metabolic reasons as a result of his physical illness … than the progression of symptoms of his acute brain injury.
Background
IA is a 60 year old man from a professional family and himself a physics graduate who once ran his own business. But his life has been eroded by extremely poor health, Type II Diabetes and related disabilities such as anaemia and partial blindness. Then in 2007 he was the subject of a violent criminal assault, being repeatedly kicked in the head, leaving him with a serious head injury, involving skull fractures, brain haemorrhage and contusions to the right frontal area of the brain.
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9 April 2014 by Rosalind English
JC and another v the Central Criminal Court [2014] EWHC 1041 (QB) (08 April 2014) – read judgment
This case raises the question whether an order made under s. 39 of the Children and Young Persons Act 1933 … prohibiting the identification of (among others) a defendant under the age of 18 years, can last indefinitely or whether it automatically expires when that person attains the age of 18 years. It has wide implications not only for young defendants but also for victims, witnesses, others concerned in proceedings and, of course, the media. [Sir Brian Leveson P, giving the judgment of the court , opening the case at para 1]
Background
On 15 November 2013, the claimants JC and RT, then 17 years of age, each pleaded guilty at the Central Criminal Court to an offence in early 2012 of joint possession of explosives. In both cases, the Crown accepted that they obtained this property without any intention of endangering life or causing serious injury to property.
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McDonald v United Kingdom [2014] ECHR 942 (20 May 2014) – read judgment
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