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Strategic litigation against public participation has been very much in the news lately, with calls from anti-SLAPPs campaigners for such abusive litigation to be banned by statute, or by amendments to the 2013 Defamation Act.
These lawsuits started in the United States in the late eighties, but they’ve certainly been on the rise in the UK and in the EU. So much so that the EU has brought out a draft directive to attempt to deal with the problem. In July this year, the then Deputy Prime Minister, Dominic Raab, launched an urgent call for evidence in response to the challenges presented by SLAPPs.
SLAPPs are often framed as legal cases. But they represent an abuse of law and procedure as their principal objective is stifling public debate rather than pursuit of a legal remedy. In Episode 173 of Law Pod UK Rosalind English discusses this phenomenon with Greg Callus, defamation specialist from Five Raymond Buildings.
A full transcript of the interview is available here.
The 22 year old patient in this case, X, was unconscious in intensive care during the course of this hearing, following a serious stroke. There was virtually no prospect that he would recover. This urgent application by X’s parents, out of hours, before Poole J was for a declaration that it would be lawful for a doctor to retrieve X’s sperm for storage after his death. The applicants also sought an order that X’s father V could sign the relevant consents under the Human Fertilisation and Embryology Act 1990 (“The 1990 Act”). The applicants did not seek any orders in respect of the use of X’s sperm once collected and stored. That was for another day.
The Trust took a neutral position on whether the declaration and order sought were in X’s best interests.
This case involved the application, and grant, of an interim injunction in the “unknown” as well as “known” protester context by Knowles J in the Birmingham District Registry.
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The first claimant was the company responsible for construction HS2, the high speed railway line between London and the North of England via the Midlands, part of which is already under construction. The second claimant was the company responsible for the successful delivery of the HS2 scheme.
A legislative scheme gave the company wide powers to acquire and take temporary possession of land for the purposes of construction and maintenance. This land covers the whole of the proposed HS2 route, and other land providing access.
Both claimants applied for an interim injunction to restrain trespass and nuisance by a large number of defendants who were opposed to the construction of HS2. Some of these defendants were named, most unnamed.
The Law Commission has recently brought out its consultation paper on these new forms of assets, and how they might be aligned with the ancient law on property. In Episode 171 of Law Pod UK Rosalind English talks to Robert Kellar KC about the challenges this novel arrangement of ownership presents to English property law. What do we mean, exactly, when we talk about the idea of digital assets?
We’re all very used to the idea of electronic money: for decades, money has been represented electronically on in our bank accounts. But the the Law Commission’s paper deals with quite different issues, when it comes to digital assets.
The consultation paper is at pains to stress that property law must encompass these new forms of ownership. As Robert points out in this episode, property rights are useful because they can be enforced against the whole world, whereas other legal rights can be enforced only against someone who has assumed a relevant duty in contract or tort.
Furthermore, the concept of property is widely used in statutes and case law, assuming a central role in proceedings concerning bankruptcy or insolvency, tortious or criminal interference with property, and death and succession.
The Law Commission’s conclusion thus far is that digital assets should be treated as a new category of property.
Listen to the episode and follow @LawPod_UK on Twitter if you have any feedback, ideas and comments for the team. Alternatively, read more about this topic on our blog here.
The Online Safety Bill is currently making its way through the House of Commons, having reached the report stage in July. The bill’s concept of “legal but harmful” is controversial, and has attracted criticism from high places, not least of all former Supreme Court judge Jonathan Sumption. Lord Sumption joins Rosalind English in this episode to discuss the problems involved in defining this kind of harm and the concepts of “misinformation and disinformation” in the Bill.
Lord Sumption worries about the “sheer randomness” of the process for identifying legal but harmful material, and points out that the internet is absolutely vast; the “scale and speed at which material is added to it every moment of our lives is breathtaking”. The only way, he says, that this can be controlled is by the use of algorithms. But they are incapable of detecting nuance or irony. They are blunt instruments. When you are applying this kind of technique to material at this scale, you are bound to get a very large number of false positives.
“So you will lose an enormous amount of perfectly acceptable material, material that is not only legal but not harmful”.
Four defendants were acquitted by a jury in Bristol Crown Court following their trial for allegations of criminal damage on 7 June 2020 to a statue of the English merchant Edward Colston (1636-1721). The story has been widely covered elsewhere so I will limit this post to a discussion of the reference itself.
The application with which this reference was concerned was whether conviction for the damage done to the statue was a disproportionate interference with the defendants’ right to protest, under the free speech Article 10, right to gather under Article 11, and the right to freedom of conscience under Article 9.
The Attorney General has the power to refer verdicts to the Court of Appeal under section 36 of the Criminal Justice Act 1972 in the event of acquittals to correct mistakes of law so that those mistakes are not perpetuated in the courts below.
It is important to note at the outset that this reference was not directed to the jury’s verdict itself. It was to clarify the law on public protest to avoid confusion.
The Court of Appeal has provided its own press summary of their decision. In the following paragraphs I gather together the salient observations in this decision.
This year Law Pod UK celebrates its fifth birthday. In 2017 we were amongst the very first to roll out a specialised series of podcasts about the law in the United Kingdom. And after a brief hiatus we’re back with a bang, with two new presenters and a number of exciting upcoming guests.
Jim has extensive experience across clinical negligence, inquests and inquiries, personal injury, human rights, tax and employment and discrimination.
He is a member of the Attorney General’s Panel of Counsel (‘B’ Panel) and has particular experience of prison law and employment claims, acting on both sides.
In this episode he talks to Clare Ciborowska and Richard Ager at the Brighton Annexe of 1 Crown Office Row about how the family court deals with allegations of ‘alienating behaviour’ by one parent against another. They examine in particular the part psychologists play in that process.
Waiting in the wings is our second new presenter, Lucy McCann. You will be meeting her shortly. Lucy has recently joined Chambers after a stellar pre-pupillage career, including editing the OUP’s practitioner text, Judicial Review: Principles and Procedure and lecturing in public law at City Law School.
Back to Law Pod UK: we now have a strong following amongst lawyers, law students and those interested in legal issues. We recently surpassed 645,000 listens and have hosted guests including Nazir Afzal OBE, Bill Browder, Gráinne de Búrca, Lord Anderson of Ipswich KC, Harriet Wistrich and Joshua Rozenberg, and panels involving Lord Justice Singh and Sir Steven Sedley.
This poignant case tells a sad story, but an instructive one in terms of human rights and the ability of courts to interpret statutes in accordance with these rights under Section 3 of the Human Rights Act 1998.
The judge’s role in these difficult private cases is subject to the “stern test” laid down by Sir James Munby in Samantha Jeffries v BMI Healthcare Limited and others[2016] EWHC 2493 (Fam) . Respect for a statute’s obvious does not entail
that the judge must approach a case such as this bereft of humanity, empathy, compassion and sympathy. What it does mean is that the judge cannot allow his judgment to be swayed, or his decision to be distorted, by those very human emotions.
Background facts and law
The statute in question in that case and this was the Human Fertilisation and Embryology Act 1990, as amended by secondary legislation and the Human Fertilisation and Embryology Act 2008. More on that later. Here, the applicant sought a declaration that it was lawful for him to use an embryo created using his sperm and the eggs of his late wife in treatment with a surrogate. The embryo was created in 2018 when the applicant and his wife (C) were undergoing fertility treatment to fulfil their wish to have children of their own. The embryo is currently stored at the Centre for Reproductive and Genetic Health.
The applicant and his wife had undergone several unsuccessful cycles of IVF, the latter being private. They had remortgaged their house to pay for the treatment. A positive pregnancy with twin girls was confirmed in November 2018. C developed complications in her pregnancy at 18 weeks, which resulted in a uterine rupture, and she died on 25 February 2019. There was one remaining embryo which the applicant wished to use with a surrogate, to fulfil their joint wish for this to take place in such circumstances. He accepted there was no written consent by C for that to take place but said that they had not been given sufficient information or opportunity to give that written consent. It was that remaining embryo that was the subject of this application.
With the current turmoil in Westminster, attention to the government’s proposed Bill of Rights Bill has temporarily fallen away. But whatever the leadership contest throws up, the debate still rages: do we repeal and replace the Human Rights Act 1998? Leave it in place, or update it? Dominic Raab’s Bill will probably have to wait a while for its second reading in the Commons; in the mean time, Rosalind English combs through its provisions with Andrew Warnock QC, whose practice at 1 Chancery Chambers involves many cases involving claims based on the European Convention of Human Rights and the 1998 Act. Listen to Episode 167 for an in-depth survey of the new Bill’s proposals.
Here are the citations for the cases referred to in the interview:
R (On the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56
Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4
UKHRB followers of a certain age may remember this advertisement for breakfast cereal, which went “viral” in the days before the internet: [deleted due to copyright rules]
Those were innocent times, when we believed that the combination of wheat, fat and sugar in a breakfast cereal was a good start to a child’s day. Now we know that foods high in sugar are major contributors to the child obesity epidemic in this country. Hence the government’s regulations on nutritional foodstuffs, introduced last year.
Background law and facts
The Food (Promotions and Placement) (England) Regulations 2021 (SI 2021/1368 – “the 2021 Regulations”) are part of the Government’s strategy to tackle childhood obesity. They introduce restrictions on the promotion, in supermarkets or other large outlets and online, of food which is classified as high in fat, sugaror salt.
Under these Regulations breakfast cereals are included in the categories of food which may be “specified food” and therefore subject to the relevant restrictions. Whether a given product within one of these categories is in fact classified as “less healthy” depends on the score which it is given under the Food Standards Agency’s Nutrient Profiling Model (“NPM”). The NPM requires that the nutrient content of a given product is analysed per 100g of the food or drink itself, rather than taking account of what the food or drink may be consumed with.
Kellogg’s – one of the main players in the breakfast market – relies on agreements with retailers to place its products in parts of stores (e.g. near the checkout, in a queuing area, at the end of an aisle) which maximise sales and to promote its products on the retailers’ websites.
Arguments before the Court
Kellogg’s pleaded claims were based on a number of grounds, the main one being that the Defendant failed to have regard to a relevant consideration, namely the fact that breakfast cereals are typically consumed with milk. This, they maintained was part of the nutrient profile of breakfast cereals.
Kellogg’s fundamental complaint about the 2021 Regulations was that, under the NPM, the fact that a portion of, for example, Kellogg’s “Frosties” would typically be consumed with milk, was not taken into account in assessing whether this product was food which is classified as high in fat, sugar or salt (“HFSS”). If the consumption of milk with breakfast cereal were taken into account, fewer Kellogg products would be classified as HFSS because the nutrient values of the added milk would contribute to the scoring. Kellogg argued that an approach which measured the relative levels of fat, sugar or salt in the product itself, rather than the health impact of the product as typically consumed, was disproportionate and irrational.
“Every day in the UK lives are suddenly, brutally, wickedly taken away. Victims are shot or stabbed. Less often they are strangled or suffocated or beaten to death. Rarely they are poisoned, pushed off high buildings, drowned or set alight. Then there are the many who are killed by dangerous drivers, or corporate gross negligence. There are a lot of ways you can kill someone. I know because I’ve seen some of them at close quarters”
These are the words of Her Honour Wendy Joseph QC in the preface to her book Unlawful Killings: Life, Love and Murder: Trials at the Old Bailey”. Until recently Wendy was a judge at the Old Bailey, trying mainly allegations of murder and other homicides. She practised as a barrister for thirty two years, then sat as a full-time judge until she retired earlier this year. Because she no longer sits as a judge she was able to publish this fascinating book which has been described in reviews as describes the book as a “novel”. And indeed it is, a series of interlinked dramatic human stories leading to a close. She writes with great clarity about the technical processes of the law, and the implications of these for the people before her in Court.
In Episode 166 Rosalind English talks to Wendy Joseph about the human stories that are played out in the Old Bailey.
Voting for the Northern Ireland Assembly took place on Thursday 5 May. This year, for the first time, Sinn Fein looks set to win a majority of the seats. Whether the Democratic Unionist Party agrees to the power sharing arrangement where it is relegated to second place remains to be seen. What continues to be hotly debated is the Northern Ireland Protocol, put in place to avoid a “hard border” between Northern Ireland and Ireland which of course is still part of the EU single market.
But the Protocol isn’t only about trade. Under Article 2 the UK government has made an important commitment regarding the rights of Northern Ireland’s citizens to equality, non-discrimination, transparency and a range of other rights protected under European Union law. Article of the 2 Protocol is a very new provision, applying the acquis communitaire of the CJEU to Northern Ireland, even though NI is part of post Brexit EU.
In our latest episode Rosalind English meets UKHRB Northern Ireland correspondent Anurag Deb in Belfast two days after the elections to discuss what this EU rights provision means for the citizens of Northern Ireland.
In Episode 163, Rosalind English talks to Ariane Adam and Tatiana Kazim of the Public Law Project about automated decision making (ADM) in the public sector, the problems of transparency and automation bias where these decisions affect people’s rights. This interview was held shortly after the House of Lords Justice and Home Affairs Committee published its report on new technologies and the application of the law.
We discuss a number of issues, in particular those that arose in the Post Office “Horizon” accountancy scandal, and the case of R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438. The defendant, responsible for appraising clinical benefits and cost-effectiveness of health care interventions, had refused to provide the claimant with a fully executable version of the model it used to assess the cost-effectiveness of the claimant’s drugs. The Court of Appeal held that procedural fairness required release of the fully executable version of the model [66]. It rejected the defendant’s claims that disclosure would undermine confidentiality or be overly costly, noting at [65] that the court should be ‘very slow to allow administrative considerations of this kind to stand in the way of its release’.
The PLP has also published a summary of the JHAC report here.
The European Court of Human Rights has ruled that states have a broad margin of discretion in applying their criminal law to cases of assisted suicide. The applicant’s conviction may have constituted an interference with his rights, but that interference was prescribed by the Danish criminal law, which pursued the legitimate aims of the protection of health and morals and the rights of others. Denmark had not acted disproportionately by convicting him.
Law Pod UK recently ran an episode with former Court of Appeal judge Sir Stephen Sedley and Trevor Moore, the director of the campaign group My Death, My Decision, in which we dealt with this difficult subject in detail. Sir Stephen is a victim of Parkinson’s disease and his contribution to the debate is profoundly important. I have therefore quoted extensively from the article Sir Stephen wrote for the London Review of Books in October 2021, “A Decent Death”.
Those campaigning for a change in the law in this field object to the use of the word “euthanasia” and I have respected this position in the following case report. It should be noted at the outset that the applicant physician was a member of an association called “Physicians in Favour of Euthanasia”. This is the English translation. The Danish suggests something closer to “assisted dying”: ” Aktiv Dødshjælp”.
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