Media By: Rosalind English


Life sustaining treatment – whose decision?

31 January 2018 by

Kings College Hospital NHS Foundation Trust v Thomas and others [2018] EWHC 127 (Fam) – read judgment

Updated: The Court of Appeal has now ruled that doctors at King’s College hospital, London, could remove Isaiah from the ventilator that has kept him alive since he was deprived of oxygen at birth and sustained catastrophic brain injury. The judges also refused the parents permission to appeal against this ruling. McFarlane LJ said

This case is not about the parents or their hopes. It is and must firmly be about Isaiah and his best interests.

Parental love is to be cherished by society, particularly when a child is sick. But the “flattering voice of hope” is not always in best interests of the object of that love.  So concluded MacDonald J in a recent ruling which has attracted considerable media attention. The judge concluded that it was not in the 11- month old boy’s best interests for life-sustaining treatment to be continued. He was satisfied on the evidence of the court, he said, that the boy, Isaiah, had

 no prospect of recovery or improvement given the severe nature of the cerebral atrophy in his brain

and that he would remain “ventilator dependent and without meaningful awareness of his surroundings”

Perhaps with the Charlie Gard publicity in mind, MacDonald J was careful to emphasise the weight of the medical evidence as against the parents’ assessment of the boy’s condition. The publicity sparked by this case has led to visits to the child by other medical professionals. There are some forceful concluding remarks in this judgement about the inappropriate nature of these possible “clandestine examinations”. These are now a matter for the police.

The judge also rejected the argument that the court should hear evidence from “foreign” experts on the approach from which other cultures might approach this question in terms of its ethics and outcome.  There was a “world of difference” between medical expertise from abroad and a foreign “expert” who simply takes the view that the medical or ethical approach to these issues in this jurisdiction differs from that in their own practice.

It would be extremely unfortunate if the standard response to applications of this nature was to become one of scouring the world for medical experts who simply take the view that the medical, moral or ethical approach to these issues in their jurisdiction, or in their own practice is preferable to the medical, moral or ethical approach in this jurisdiction.

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Deportation of foreign criminals: out of country appeals still lawful

18 January 2018 by

Nixon & Anor, R (On the Application of) Secretary of State for the Home Office [2018] EWCA Civ 3, 17 January 2018 – read judgment

The Court of Appeal has refused a judicial review application and permission to appeal in two cases where the applicants were required to pursue their challenges to deportation “out of country” rather than in the UK.  Where the Secretary of State has rejected a human rights claim, and deportation is considered in the public good – because the deportee is a foreign criminal – there has been debate about the effectiveness of an out-of-country appeal .

Background

The facts of this case are similar to the case of R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department [2015] EWCA Civ 1020. In each case, the appellant was threatened with deportation as a result of offending, but he contended that deportation would be in breach of his right to private and/or family life under article 8 of the ECHR. We posted on Kiarie and Byndloss here.  The Court of Appeal held in that case that the Secretary of State could properly proceed on the basis that an out-of-county appeal would meet the procedural requirements of article 8 in the generality of deportation cases, because such an appeal met the essential requirements of effectiveness and fairness.   The Supreme Court reversed  the ruling on the specific facts of the case before them. But their conclusion – that in the cases of Kiarie and Byndloss, the out-of-country appeal procedures were inadequate – does not affect all cases thus certified. All questions of adequacy of evidence and video links have to be considered on a case by case basis, taking into account the efforts made by the individual applicant to advance their case. Not all decisions depriving people of the right of appeal from the UK will be unlawful; it depends on the facts. 
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Legal Milestones on the route to Brexit: Catherine Barnard

17 January 2018 by

In the cooperative spirit of podcasting, Professor Catherine Barnard of Cambridge University has kindly agreed to allow Law Pod UK to repost the enlightening podcasts from her series 2903CB, charting the transitional stages that need to be negotiated as we progress towards 29 March 2019, when the UK will be no longer part of the EU (CB being Catherine Barnard). Here’s the first one: UK Law Pod No 21: Outlining the legal milestones to Brexit, also available as part of the UK Law Pod series on iTunes.

We hope to continue to rebroadcast her series, along with our own output of interviews and seminars from 1 Crown Office Row on all manner of subjects.

Listen up! Thoughts on gender segregation and urban development

21 December 2017 by

We have two new podcasts up on iTunes Law Pod UK.

Charlotte Gilmartin if you remember recently unpacked the planning dust-up  over the Eagle Wharf redevelopment in Regent’s Canal in her recent post on the High Court judgment. More on this important decision and its implications for planners in her discussion here.

And the case of the Islamic state school of Al-Hijrah in Birmingham which attracted so much attention when the High Court ruled in favour of Ofsted’s critical report continues to make waves. Rajkiran Bahey analysed it here and ponders the many issues involved in discussion with Rosalind English here.

Law Pod UK is available for free download on iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast. 

MOD to compensate Iraqis for “ill treatment”

18 December 2017 by

iraq war human rights compensation civilian Camp Bassa compensation damages conflict of laws international humanitarian law

Aseran and others v Ministry of Defence [2017] EWHC 3289 (QB) 14 December 2017 – read judgment

The High Court has upheld claims by four Iraqi civilians that their human rights had been breached by the British army. Their claims in tort were rejected as time-barred.

These were four claims in the large scale action known as the Iraqi civilian litigation. This judgment follows the first full trials of civil compensation claims in which the claimants themselves and other witnesses testified in an English courtroom. The introduction given by Leggatt J best explains the picture.

The claimants in these cases are Iraqi citizens who allege that they were unlawfully imprisoned and ill-treated …by British armed forces and who are claiming compensation from the Ministry of Defence. Questions of law raised by the conflict in Iraq, some of them novel and very hard questions, have been argued in the English courts and on applications to the European Court of Human Rights since soon after the conflict began. Until now, however, such arguments have taken place on the basis of assumed facts or limited written evidence.

The four claims were tried as lead cases out of more than six hundred remaining cases. All the claims were advanced on two legal bases. The first was the general law of tort under which a person who has suffered injury as a result of a civil wrong can claim damages from the wrongdoer. Because the relevant events occurred in Iraq, the Iraqi law of tort was applicable. But the claims were subject to a doctrine known as Crown act of state which precludes the court from passing judgment on a claim in tort arising out of an act done with the authority of the British government in the conduct of a military operation abroad.
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Undercover police officers: how far does their legal liability go?

8 December 2017 by

TBS v Metropolitan Police Commissioner [2017] EWHC 3094 – read judgment

The High Court has refused an application to strike out a claim in negligence and misfeasance in public office taken by someone born as a result of a liaison between an activist in the animal liberation movement and a man who subsequently turned out to be an undercover police officer.

Although this is not a full trial of the merits, the ruling from Nicol J triangulates on very interesting questions relating to “wrongful life” claims, legal duties owed by people in public office, and the predictability of harm as well as the identity of potential victims. It also touches on the character of psychiatric harm, and how difficult it is to identify the point at which it can legitimately be said to arise. Whatever the results of the ultimate litigation, the arguments here raise sharp questions of public policy as to who, and what, should be compensated from the public purse. There is also a deep philosophical question underlying the whole argument which is known as the “non-identity problem”. Can you harm somebody by bringing them into existence?
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Supreme Court rules on time limitation for claims under the Human Rights Act

6 December 2017 by

O’Connor (Appellant) v Bar Standards Board (Respondent) [2017] UKSC 78  – read judgment

The Supreme Court has ruled that a barrister’s claim against the Bar Standards Board for discrimination should not be time barred under the one year limit prescribed by the Human Rights Act. In her case, the Court said,  the time limit for bringing proceedings only started running when she successfully appealed against disciplinary action taken against her. The decision to bring disciplinary proceedings and the subsequent hearings were part of a single process, not a series of disparate acts which set the time limitation period running.

The Court also concluded that the High Court judge was correct to conclude that the appellant’s claim of indirect discrimination in respect of her right to be treated equally under the law (Articles 14 and Article 6) did have a real prospect of success.

The following report is based on a combination of the full judgment and the Supreme Court’s press summary.

 

Background facts and law

Ms O’Connor is a practising barrister who faced a number of disciplinary charges brought against her by the Bar Standards Board in 2010. In May 2011, the Disciplinary Tribunal found most of these charges proved. The appellant, who is black, appealed to the Visitors of the Inns of Court and in August 2012 her appeal was allowed on the basis that none of the alleged conduct involved any breach of the Bar Code of Conduct.

In February 2013, the appellant issued the present proceedings, which included an allegation of violation of Article 14 of the ECHR together with Article 6. She claimed that the BSB, by bringing the disciplinary proceedings. had discriminated against her on racial or ethnic grounds. In particular, she alleged that the respondent had infringed her right to a fair trail on grounds of race.

Since this was a claim under section 6 of the Human Rights Act 1998 the limitation provisions under that Act applied. The BSB maintained that this claim was time – barred under section 7(5)(a) of the 1998 Act which provides that proceedings must be brought before the end of the period of one year beginning with the date on which the act complained of took place.

Shortly afterwards the respondent sought to strike out the case on the basis that none of the appellant’s had any real prospect of success and, in any event, there was a complete defence under section 7(5)(a) . Although the strike out was initially successful, on appeal Warby J in the High Court held that there was a sufficiently pleaded case that the respondent had indirectly discriminated against the appellant. However, he also held that the claim was indeed time – barred under the Human Rights Act.
The Court of Appeal held that the limitation period under section 7(5)(a) had started to run when the Disciplinary Tribunal had found the charges against the appellant proved and so had expired before she had issued her claim.
The appeal essentially turned on one question: when the ‘prosecution’ of the appellant commenced .  If it started with the decision to bring proceedings was taken in 2010 then the one – year time limit had expired some 17 or 18 months before the issue of these proceedings in February 2013. If the BSB’s ‘prosecution’ of the appellant was considered to be a continuing state of affairs up to the tribunal decision, time under section 7 only expired in May 2012, which meant that her discrimination claim was in time.
It was argued on behalf of the respondent that the decision to refer the appellant to a disciplinary tribunal, even if indirectly discriminatory, was a one – off act with potentially continuing consequences rather than a continuing violation.

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Animal welfare after Brexit: adjustable upwards or downwards

30 November 2017 by

Updated: Brexit, Article 13, and “animal sentience” in law (28 November 2017) –    Animal Law’s Expert Briefing Note

In November 2017  a vote took place in the House of Commons on a proposed amendment to the EU (Withdrawal) Bill. The Commons Library briefing paper was published on 7 December: Animal Sentience and Brexit.  The amendment  sought to incorporate into UK law a provision in the European treaty that stated the EU and its member States “shall, since animals are sentient beings, pay full regard to the welfare requirements of animals” when formulating and implementing the EU’s policies.  The vote was defeated by 313 to 295 votes.

The story of this debate has prompted a great deal of comment in newspapers and on social media, mostly critical of the UK Government’s position. The coverage reflects much of the prejudice and confusion attaching to animals reared for our use, be it for medical therapy, food or companionship. That is to be expected. But what is less excusable is that most of the coverage was  based on misunderstandings of both the Treaty Article and other EU provisions relating to animals.

So may I put in a plea for anyone who is interested to read the clear and balanced account of this issue set out by the UK Centre for Animal Law in their Briefing Note, which I will attempt to summarise here. I do urge reading the original document, which is an excellent summary of the legal and factual issues involved.

A quick reminder

When the Brexit vote came in, I wrote a post under the heading of One Trade Freedom We can Do Without. Maybe not tactful timing then, but this question is now ripe for consideration, with DEFRA secretary Michael Gove promising better protections for animals raised for food, and even for companion animals such as dogs and horses, once they are no longer trapped in the imperative of free movement of goods under the EU Treaty provisions.
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Damages for wrongful birth: how far does a doctor’s responsibility go?

28 November 2017 by

MNX v Khan [2017] EWHC 2990 (QB) (23 November 2017) – read judgment 

Can a mother who consults a doctor with a view to avoiding the birth of a child with one disability recover damages for the costs associated with another disability?

The claimant sought damages arising out of the wrongful birth of her son Adejuwon.  She had become pregnant after being reassured that there was no risk of haemophilia. Her child was born with the condition, and it subsequently turned out that he suffered from autism as well. The costs of bringing up a child with haemophilia were estimated at £1,400,000. The additional costs of autism amounted to £9,000,000.  
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Two New Law Pod UK podcasts on Inquiries

28 November 2017 by

If you download Episodes 17 and 18 from iTunes or Audioboom, you will hear Jim Duffy discussing the proposed inquiry into the contaminated blood scandal which took place during the eighties and nineties. Episode 18 features a discussion between former historians now barristers Matthew Hill and Gideon Barth on inquiries in general, particularly ones that have been set up to investigate events which took place in the distant past.

Law Pod UK Episode 7: Prospects for the Tainted Blood Inquiry

Law Pod UK Episode 8: Do Judge Led Inquiries Work?

Related Posts:

Law Pod UK is available for free download on iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast. 

Minimum price of 50p on alcohol sales approved by the Supreme Court – for Scotland

17 November 2017 by

Scotch Whisky Association  v Lord Advocate and Another (Scotland)  [2017] UKSC 76 – read judgment

The Supreme Court has ruled that the introduction of minimum pricing into the sales of alcohol in Scotland will not constitute a disproportionate measure interfering with the free movement of goods and competition in the EU. The initial legislation that paved the way for minimum pricing was approved by the Scottish parliament five years ago but has been under legal challenge since. The Scottish Parliament had decided to address the health and social consequences arising from the consumption of  cheap alcohol by a minimum pricing regime. They did this by inserting in the Scottish licensing legislation an additional condition that an alcohol product must not be sold at a price below a statutorily determined minimum price per unit of alcohol. The minimum price is to be set by secondary legislation. The current proposal is 50 pence per unit of alcohol.
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Experimental treatment? “All of life is an experiment” – New Podcast

13 November 2017 by

B (Applicant, acting as litigation in person) – and – D (by his litigation friend, the Official Solicitor) (1) The Ministry of Defence (2) [2017] EWCOP 15 Respondents – read judgement

Stem cell therapy has been very much in the news recently, as doctors have saved the life of a seven year old boy with a genetic disorder that caused the top layer of his skin to blister and flake away. After years of struggling with this painful and dangerous disease – antibiotics, bandages and even skin transplants were to no avail – the boy was on the point of death from bacterial infection. The skin contains its own supply of specialised stem cells, which allows the epidermis to be constantly renewed throughout our lives, with cells turning over roughly every month. This also allows scientists to grow grafts in culture, simply by taking a small sample. Specialists in Germany cultured centimetre wide pieces of his skin and engineered this tissue to accept the correct gene through viral transfer. The healthy patch of skin was then grown in the laboratory until enough of it was ready to be grafted back on to the boy’s body. Ultimately the team was able to replace 80% of the child’s skin. He is now understood to be leading a normal life at school, playing soccer and generally not displaying any of the dangerous side effects of gene therapy.

The relevance of this success story to this Court of Protection case will soon become obvious. In this hearing Baker J, deciding the best interests of D, a young man severely brain damaged after being assaulted by another soldier, had to determine whether his strongly held desire to travel to Serbia for stem cell treatment should prevail over the medical opposition to such a step. This was not a case of scarce allocation of public resources as D had the money from his compensation award to spend on this treatment.
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Public Law Podcast Seminar on Radicalisation Part 3: Detention

27 October 2017 by

Detention and the common European Asylum System  –  Alasdair Henderson and Suzanne Lambert

The highlights of the Public Law Seminar given by members of 1 Crown Office Row are now available for podcast download here or from iTunes under Law Pod UK, Episodes 13, 14 and 15. For ease of reference the following three posts set out the introductions to each of the presentations and the case citations.

For non-Apple devices the podcasts are available via the Audioboom app.

Click on the heading for PDF copies of each of the presentations.

Issues:

  • Detention in UK pending transfer to another Member State;
  • Detention in another Member State pending transfer to the UK;
  • Risk of detention in another state as grounds for resisting transfer.

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Public Law Podcast Seminar on Radicalisation Part 2: Inquests and Article 2 ECHR

27 October 2017 by

 Inquests and Article 2 ECHR – Caroline Cross and Suzanne Lambert

The highlights of the Public Law Seminar given by members of 1 Crown Office Row are now available for podcast download here or from iTunes under Law Pod UK, Episodes 13, 14 and 15. For non-Apple devices the podcasts are available via the Audioboom app.

For ease of reference the following three posts set out the introductions to each of the presentations and the case citations. Click on the heading for PDF copies of each of the presentations.

Introduction

Article 2 ECHR has had a profound impact upon coronial law, no more so than in relation to deaths in custody/detention and mental health deaths.

This talk will cover the following topics: mental health inquests; terrorism inquests (and inquiries); and detention inquests. Through these lenses, we will examine a number of developments in coronial law over the past 18 months and draw out relevant themes.

We discuss a number of cases in relation to mental health and detention inquests.

Case references in podcast

P v Cheshire West and Chester Council [2014] UKSC 19

R (on the application of Ferreira) and HM Senior Coroner for Inner London South, King’s College Hospital NHS Foundation Trust, the Intensive Care Society and the Faculty of Intensive Care Medicine and Secretary of State for Health and Secretary of State for Justice [2017] EWCA Civ 31

Austin v UK (2012) 55 EHRR 359

Tyrrell v HM Senior Coroner County Durham and Darlington [2016] EWHC 1892 (Admin)

R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin)

R (Hamilton-Jackson) v Assistant Coroner for Mid Kent and Medway [2016] EWHC 1796 (Admin)

R (Scarff and Ors) v Governor HMP Woodhill and Secretary of State for Justice [2017] EWHC 1194 (Admin)

 

 

 

Public Law Podcast Seminar on Radicalisation Part 1: Civil Law and Closed Hearings

26 October 2017 by

1) Issues with Radicalisation cases and the civil law – Martin Downs

The first episode from the Public Law Seminar given by members of 1 Crown Office Row is now available for podcast download here or from iTunes under Law Pod UK. Look for Episode 13: Tackling radicalisation through the civil courts.

For non-Apple devices the podcasts are available via the Audioboom app.

For ease of reference the following three posts set out the introductions to each of the presentations and the case citations. Click on the heading for PDF copies of each of the presentations.

Introduction

The Civil Courts have now been involved in cases of radicalisation brought before them by local authorities for very nearly three years (we are approaching the third anniversary of the first case). What was then innovative is now reasonably well-established (see President’s Guidance on Radicalization Cases in the Family Courts (8 October 2015) and the judgment of Hayden J in London Borough of Tower Hamlets v B [2016] EWHC 1707.
 Concern was stirred originally by the spectre of significant numbers of people travelling to Syria to demonstrate their support for ISIS or the Al Nusra Front. This problem is not novel as 80 years ago Britain and Ireland were similarly fixated with the problem of volunteers departing for Spain to fight on both sides in the Civil War. A portrayal of the indoctrination of school age children to fight in that war even seeped into popular culture courtesy of Muriel Spark’s novel, The Prime of Miss Jean Brodie. The current situation is complicated by the relative ease of international travel, the tactics and targets used by extremists and the fact that the UK has already experienced domestic terrorism inspired by international examples.
 The number of UK nationals travelling to Syria may have fallen but reports in 2016 of significant numbers of youths travelling from Kerala to Syria show that the problem has not fallen away and is truly international.

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