By: Rosalind English
6 April 2013 by Rosalind English
The Queen (on the application of Newhaven Port and Properties Limited (Respondent)) v East Sussex County Council (Appellant) and Newhaven Town Council (Interested Party) [2013] EWCA Civ 276 – read judgment
This is a tale of common law rights, open water swimming, and individual freedoms. It is about the flip side of codified human rights: the time-honoured principle, that that which is not specifically prohibited, is – or should be – permitted in English law.
Our current preoccupation with certain sorts of intolerance must not allow us to lose sight of another threat to our individual freedoms: the encroaching requirement that our use of wild spaces is subject to the permission of the public authority who happens to be vested with certain statutory power over the land in question. This ruling confirms, if it needed confirming, that “toleration” does not mean the same as “permission”. If we allow the one to collapse into the other, the inference will become widespread that use of such land is permissive by virtue of an implied licence, a licence which can be easily withdrawn at any time.
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4 April 2013 by Rosalind English
Raw and others v France – read judgment (only available in French)
This complicated inter-jurisdictional battle between estranged parents is a stark illustration of how difficult it can be in these sorts of cases to apply the law in the fog of family warfare.
Even though the mother’s case was upheld in the Strasbourg Court, one can tell from the modesty of the damages awarded and the strength of the minority opinions that the judges were extremely reluctant to apply hard letter law to the complicated case before them. Indeed in one partially concurring judgment, Judge Nussberger found it distinctly odd that the mother was able to join the children as parties, in the light of their opposition to her wish that they leave their father to join her.
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4 April 2013 by Rosalind English
The Queen (on the Application of James Dowsett) v Secretary of State for Justice [2013] EWHC 687 (Admin) – read judgment
The secretary of state’s policy in respect of rub-down searches of prisoners, which allows cross-gender searches in the case of male prisoners but not for female prisoners, does not discriminate against male prisoners on grounds of sex.
Background
The claimant, who has been a serving prisoner since 1989, challenged Secretary of State’s policy made under section 47(1) of the Prison Act 1952. This is the policy on so-called “rub-down” searches and, in particular, the policy that a male prisoner cannot normally object to such searches conducted by a female prison officer other than when his case falls within the exceptions based on “religious” or “cultural” grounds (a cultural ground means an objection that arises from a sincerely and deeply held belief, so it is not clear how this ground differs from religion). In consequence, the claimant had been searched by female officers on many occasions. Current policy with regard to female prisoners was that they could only be searched by female staff.
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22 March 2013 by Rosalind English
R (on the application of) Lord Carlile of Berriew and others v Secretary of State for the Home Department 20 March 2013 [2013] EWCA Civ 199 – read judgment
Last year the Divisional Court upheld the Home Secretary’s decision to prevent a dissident Iranian politician coming to the United Kingdom to address the Palace of Westminster: see that decision here and my post discussing the “Politics of Fear” here.
In this appeal, the parliamentarians contended that the Divisional Court had failed to consider the proportionality of the exclusion decision with sufficient scrutiny, and, by giving precedence to the possibility of unlawful actions by the Iranian regime, had given inadequate weight to the rule of law. It was perverse, they said, to justify the exclusion decisions by reference to risks to local staff and British government property in Tehran. Furthermore they argued that there had been unfairness in failing to consult the Parliamentary appellants.
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20 March 2013 by Rosalind English
Cancer Voices Australia v Myriad Inc 13 February 2013 – read judgment
Another battle in the war against gene patenting has been lost, this time in Australia.
The US litigation is still ongoing, with the US Court of Appeals for the Federal Circuit upholding Myriad’s patents on DNA sequenced in the laboratory: see my post on that judgment. On 30 November 2012, the US Supreme Court announced that it would hear an appeal in the Myriad case. The US law in relation to the patentability is therefore not likely to be settled until the Supreme Court reaches it own decision on the issue.
This Federal Court ruling in Australia has now endorsed the government’s rejection of calls for an outright ban on the patenting of genes by ruling that isolated nucleic acid (including isolated DNA and RNA) is patentable.
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14 March 2013 by Rosalind English
Eon v France, no. 26118/10 14 March 2013- read judgment (in French only)
The applicant, Hervé Eon, is a French national, a socialist and anti-GM activist living Laval (France). The case concerned his conviction for insulting President Sarkozy.
During a visit by the President to the département of Mayenne on 28 August 2008, Mr Eon had waved a placard reading “Casse toi pov’con” (“Get lost, you sad prick”), a phrase uttered by the President himself several months previously when a farmer had refused to shake his hand at the International Agricultural Show. The utterance was widely disseminated in the media and on the internet, attaining the status of a slogan.
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12 March 2013 by Rosalind English
R (on the application of A) v the Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) – read judgment
This was an application for judicial review, and a claim under the Human Rights Act 1998, in respect of the defendant’s decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate dated 12th October 2012.
Background
In August 2012, the defendant received a request from the Criminal Records Bureau for an enhanced check to be made in respect of the Claimant concerning her proposed employment by Nightingales 24 7 as a registered nurse. The information related to the alleged mistreatment of several elderly and vulnerable adults resident in the care home in which [A] worked as a Registered General Nurse. The allegations were made by the residents and the health care workers in the charge of A, a registered nurse who qualified in Nigeria. She claimed that these allegations had been made maliciously because the health care assistants resented the way in which she managed them. She also claimed that some of the allegations were motivated by racism.
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11 March 2013 by Rosalind English
A newsflash on the eve of the May 2010 elections was instantly eclipsed by the news of the coalition-bartering in the days that followed. But it concerned one of the most important scientific discoveries of the year, if not the century.
Evolutionary biologists at the Max Planck Institute for Evolutionary Anthropology in Germany had finished sequencing the Neanderthal genome. In the publication of their results the team pointed up the similarity between the four billion pairs of Neanderthal DNA and stretches of the human genome, suggesting that humans and their ancient hominid cousins must have interbred some time after modern Homo Sapiens left Africa, meaning that elements of Neanderthal genome is present in non-African modern humans. The study found that 2.5 percent of the genome of an average human living outside Africa today is made up of Neanderthal DNA.
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9 March 2013 by Rosalind English
Meiklejohn v St George’s Healthcare Trust [2013] EWHC 469 (QB) – read judgment
Richard Booth of 1 Crown Office Row acted for the claimant in this case. He is not the author of this post.
There is no doubt that medical diagnosis and therapy are struggling to keep pace with the genetic information pouring out of the laboratories and sequencing centres. And the issue of medical liability is being stretched on the rack between conventional treatment and the potential for personalised therapy. Treatment of disease often turns out to be different, depending on which gene mutation has triggered the disorder. However fine tuned the diagnosis, it may turn out to be profoundly wrong in the light of subsequent discoveries.
This is perhaps an oversimplified characterisation of what happened in this case, but it exemplifies the difficulties facing clinicians and the courts where things go wrong, against the backdrop of this fast-moving field of scientific endeavour.
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8 March 2013 by Rosalind English
R on the application of Save our Surgery Ltd v Joint Committee of Primary Care Trusts (Defendant) and Newcastle Upon Tyne Hospitals NHS Foundation Trust (interested party) [2013] EWHC 439 (Admin) – read judgment
Philip Havers QC, Jeremy Hyam of 1 Crown Office Row represented the claimant in this case, and Marina Wheeler of 1COR acted for the defendant. None have them have anything to do with the writing of this post.
In this latest challenge to the reconfiguration of paediatric heart surgery services., the Administrative Court has held that an NHS plan to end child heart surgery at a number of centres in the UK was flawed for lack of consultation (see Martin Downs’ post on a previous challenge to this consultation).
As Martin predicted, fairness and consultation have proved to be more solid ground from which to launch a missile against the NHS reconfiguration plan. This plan followed the findings of the Public Inquiry into deaths at Bristol Royal Infirmary (the “Kennedy report”) and was meant to address the “fragmented and uncoordinated” nature of this surgery across the country. The inquiry found that up to 35 children had died as a result of sub-standard care during heart surgery. As a result, a specialist panel, the Joint Committee of Primary Care Trusts (JCPCT), was set up to encourage the development of specialisation by reducing the number of centres providing paediatric cardiac services.
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6 March 2013 by Rosalind English
Tesla Motors Ltd and another v British Broadcasting Corporation [2013] EWCA Civ 152 – read judgment
The Court of Appeal has refused an appeal against the strike out of a libel claim against the BBC in relation to a review of an electric sports car by the “Top Gear” programme. The judge below had been correct in concluding that there was no sufficient prospect of the manufacturer recovering a substantial sum of damages such as to justify continuing the case to trial.
The manufactures of an electric sports car made two of their “Roadsters” available to BBC’s “Top Gear” programme for review. The show’s tests were designed to push the cars to the limits of their performance in terms of acceleration, straight line speed, cornering and handling. One of the cars was driven by the presenter of the show, Jeremy Clarkson, who was filmed driving it round the test track and commenting on his experience.
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1 March 2013 by Rosalind English
Omar, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118 – read judgment
Angus McCullough QC of 1 Crown Office Row acted as a special advocate in this case. He is not the author of this post.
The contending principles in this case are encapsulated in the question put to the Court of Appeal:
In considering whether to allow an application for evidence in proceedings abroad, is the Court to “fill a justice gap” or “respect a sovereignty limit”?
This was an appeal from a decision by the Divisional Court decision in June last year. My post on that ruling sets out the salient facts. In sum, that court refused the claimants’ application for an order against the secretary of state for material for use in proceedings in Uganda.
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27 February 2013 by Rosalind English
Updated: The Supreme Court has now ruled on this case, rejecting Bowman’s appeal: see judgment. On Tuesday 19 February, the US Supreme Court heard opening arguments in the latest stage of the battle between a 75 year old farmer and the agri-giant Monsanto, over whether patents on seeds — or other things that can self-replicate — extend beyond the first generation of the products. The dispute in Bowman v Monsanto goes to the heart of the debate over the patenting of living organisms. This of course is also at the centre of the Myriad breast cancer gene litigation which I covered here.
The case is fascinating not just because it exposes the limits of patent law in an era of fast-growing biotechnology, but because it seems to speak to the concerns of the anti-GM lobby – the stranglehold of big corporations over farmers, the fear of transgenic organisms themselves and their consequences for agriculture. But Green woo about the dangers of genetically engineered crops will not find judicial endorsement in this litigation, despite the multiple briefs filed in support of Bowman, attacking GM technology. This is an inquiry into the reality or otherwise of patenting nature, not the morality thereof. As The Atlantic summarises it:
It’s a story about technology and innovation and investment, about legal standards and appellate precedent and statutory intent, about the nature of nature and how the law ought to answer the basic question of who owns the rights to the seeds of planted seeds.
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20 February 2013 by Rosalind English
Heafield v Times Newspaper Ltd (Religion or Belief Discrimination) [2013] UKEAT 1305_12_1701 (17 January 2013) – read judgment
The Employment Appeal Tribunal (EAT) has found that the use of bad language was evidently merely an expression of bad temper and not intended to express hostility to the Pope or Catholicism and that it did not constitute harassment within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.
Background
The Appellant, a casual sub-editor on the Times Newspaper, was a Roman Catholic. He was working at the Times during the visit to the United Kingdom of the Pope in 2010. During March the Times was preparing a story about the Pope relating to allegations that he had protected a paedophile priest. There was some delay in producing the story, and one of the editors in the newsroom, a Mr Wilson, shouted across to the senior production executives “can anyone tell what’s happening to the fucking Pope?”. When there was no response he repeated the question more loudly. The Appellant was upset and offended what he heard. He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the Employment Tribunal for harassment and victimisation on the grounds of his religious belief.
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17 February 2013 by Rosalind English
Tamiz v Google Inc [2013] EWCA Civ 68 – read judgment
The Court of Appeal has ruled that in principle, an internet service provider that allowed defamatory material to remain on a blog hosted on its platform after it had been notified of a complaint might be a “publisher” of this material, although in this case the probable damage to the complainant’s reputation over a short period was so trivial that libel proceedings could not be justified.
This interesting case suggests there may be an opening for liability of Google for defamation, if certain steps have been taken to fix them with knowledge of the offending statement. Mr Tamiz, who claimed to have been defamed by comments posted on the “London Muslim Blog” between 28 and 30 April 2011, appealed a decision in the court below to decline jurisdiction in his claim against the respondent corporation and to set aside an order for service of proceedings on Google out of the jurisdiction.
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The Queen (on the application of Newhaven Port and Properties Limited (Respondent)) v East Sussex County Council (Appellant) and Newhaven Town Council (Interested Party) [2013] EWCA Civ 276 – read judgment
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