Media By: Rosalind English


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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New podcast: Damages claim over IVF baby

22 October 2017 by

ARB v IVF Hammersmith Ltd [2017] EWHC 2438read judgment

The claim for over £1 million taken by a father against an IVF clinic for failing to notice that his signature on the consent form had been forged has been widely reported in the press. In the latest Law Pod UK podcast Rosalind English discusses the case with David Prest. Whilst the McFarlane principle defeated the financial claim, Jay J had some stern words to say about the actions of the mother and the procedures of the clinic.

Episode 12 of Law Pod UK is available for free download from iTunes.

High Court rejects motor neurone sufferer’s application to overturn prohibition on assisted suicide

11 October 2017 by

Conway, R (On the application of) v The Secretary of State for Justice [2017] EWHC 2447 (Admin) – read judgment

This case concerns the issue of provision of assistance to a person with a serious wasting disease who wishes to commit suicide, so as to be able to exercise control over the time of his death as the disease reaches its final stages. See our previous post on it here and here. It follows a line of cases which have addressed that or similar issues, in particular R (Pretty) v Director of Public Prosecutions [2001] UKHL 61; [2002] 1 AC 800 (“Pretty“), R (Purdy) v Director of Public Prosecutions [2009] UKHL 54; [2010] 1 AC 345 (“Purdy“) and R (Nicklinson) v Ministry of Justice [2014] UKSC 38; [2015] AC 657(“Nicklinson“). Permission to bring this judicial review was granted by the Court of Appeal (McFarlane and Beatson LJJ, see [2017] EWCA Civ 275), having earlier been refused by the Divisional Court (Burnett LJ, Charles and Jay JJ) at [2017] EWHC 640 (Admin

Section 1 of the Suicide Act 1961 abrogated the rule of law whereby it was a crime for a person to commit suicide. In this hearing Mr Conway sought a claim for a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998  in respect of the prohibition in the criminal law against provision of assistance for a person to commit suicide. That prohibition is contained in section 2 of the Suicide Act 1961.
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Are surrogacy costs a legitimate claim?

1 October 2017 by

XX v Whittington Hospital NHS Trust 2017 EWHC 2318 (QB) (18 September 2017)  [HQ15C04535]

Podcast about this case now downloadable

Commercial surrogacy arrangements are considered to be against public policy in the UK and therefore illegal. Surrogacy in the UK is only legal where there is no intention to make a profit – though reasonable expenses are recoverable. Where legal surrogacy is
carried out the surrogate mother is the legal mother of the child. In this case the claimant had suffered injury due to the hospital’s failure to diagnose her cervical cancer in time. She had to undergo chemotherapy and radiation treatment which, amongst other things, damaged her uterus so she was unable to bear and carry a child. Before the treatment she had her eggs frozen.

The hospital admitted negligence. As part of her damages claim she sought the expenses she would incur for a commercial surrogacy arrangement in California. She wished to go to the US since the position of a woman seeking surrogacy in the UK is made more difficult by the fact that commercial arrangements are illegal. This means that in the UK the surrogate chooses the biological mother, rather than the other way around. The lack of certainty over parental status was also cited as a reason why an arrangement in the US would be preferable.
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PKU boy to be treated with Kuvan after High Court ruling

1 October 2017 by

You may remember the podcast discussion between me, Rosalind English, and David Hart QC earlier in the summer about the NHS decision not to fund the drug Kuvan for the amelioration of symptoms of a boy suffering from  phenylketonuria (PKU) and severe autism. The podcast concerned a High Court ruling that the health service should review its decision not to fund the drug Kuvan.

As I mentioned in the original report, the judge did warn the boy’s family against being too optimistic, saying

however much one might hope that on the next occasion the panel will decide that the net additional expenditure of treating S with Kuvan would be justified … they could still lawfully decide to refuse funding.

However, the judge’s caution has not been borne out by events. On Friday 29th September it was reported that NHS England has agreed to provide the drug to treat his PKU, which if left unchecked can lead to complications including brain damage.

Listen to Episode 9 of Law Pod UK, available for download on iTunes

A weed is a plant in the wrong place

29 September 2017 by

... and pests are misplaced animals. We are all too familiar with the stories of mayhem caused by urban foxes released into the countryside, and the collapse in property value where Japanese knotweed is found to have invaded. The perpetrators of such damage are rarely identified and brought to account. So it is with a level of glee that the prosecution of two “Buddhist activists” has been reported in the media after they released nearly a thousand alien crustaceans off the coast of Brighton.

“Banker” Ni Li and “estate agent” Zhixong Li bought the live American lobsters and Dungeness crabs from a London fish merchant, hired three boats from Brighton Marina and cast the animals adrift as part of a religious ceremony, fangsheng, which is understood to be the cause of many ecosystem disruptions in Asia.

This short story is so replete with topical issues it is hard to know where to begin.

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Duty of care in genomic medicine: who is liable?

3 September 2017 by

Clinical Genetics is a field of medicine concerned with the probability of an indvidual’s condition having an hereditary basis.  The journal Medical Law International has just published an article  about the scope of potential duties of care owed by  specialists in this field to people with heritable diseases.  The authors draw out the features of genomic medicine that open the door to new liabilities; a potential duty owed by clinicians to third party family members, and another legal relationship that may be drawn between researchers and patients.

Background

There is no legislation on the duties involved in genome sequencing in the United Kingdom, and, in the absence of this, any new legal duties on the part of professionals in clinical genomics need to be established within the common law of negligence. Civil lawyers are familiar with the standard framework for establishing whether a duty of care is owed, based on these three consecutive questions:

  1. Was the damage was reasonably foreseeable
  2. Was there was sufficient “proximity” between the claimant and the defendant and
  3. Would it be fair, just and reasonable to impose a duty: see Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618

These principles are neat enough as they are laid out but only take us as far as the facts of any particular case, particularly the Caparo test outlined in para (3).

This relatively new field of medical endeavour is unusual in that it is concerned with the management of a family rather than one individual. More generally, in the field of genomic medicine, there is a “close interaction between care and research”, resulting in “the real possibility” that genomics researchers will be found to owe a legal duty to disclose findings to participants.

So we have two new possible avenues of liability here; that of clinicians to third parties, and that of researchers to patients.
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New podcast: they’ve come for our cars, when will they go for your brief?

1 September 2017 by

We have just posted a discussion here between 1 Crown Office Row recruit Thomas Beamont and Rosalind English on the reach of Artificial Intelligence into the legal world: click on Episode 10 of our podcast series.

Law Pod UK is freely available for download on iTunes

Related material:

The robots are taking over, and the legal profession is not immune

21 August 2017 by

Richard Susskind, IT adviser to the Lord Chief Justice, has spent many years looking into the future of the law. In a fascinating podcast paving the way for his new book The Future of the Professions and the updated Tomorrow’s Lawyers, he discusses with OUP’s George Miller the new world of technological advancements in the day to day management of dispute resolution. We have taken the liberty of summarising the podcast here and posting a link to the interview at the end of this post. 

Susskind finds, in comparison with the rest of the English speaking world, that the legal institutions of the UK are in some sort of denial about the march of AI. He maintains that the legal world will change more in twenty years than it has in the past two centuries. If we want to improve access to justice in our society, the answer is in technology. But the law schools have not caught up with this idea.

How do we work out what to do in the face of irreversible and inevitable change in the law? Susskind acknowledges that most people want to pay less for legal services, for something that is less complicated, less combative. It’s not that there’s less legal work to do, there’s more legal work to do, but it’s under cost pressure.

The twenties will be the big decade of change. The age of denial ended in 2016; leaders in law are no longer saying the legal world is going to go back to what it was in 2004-6. But the period from 2016 – 2020 is the area of resourcing, put bluntly, finding cheaper people to do the work by outsourcing, as manufacturing did years ago. Once we’re into the twenties, we’ve arrived in an area Susskind calls the decade of disruption. The challenge to lawyers will be to provide not only one to one services in the traditional way, but to work on systems that one day will replace us. The trusted advisor concept is not fundamental to the legal service. That was limited to the print world. The future of the professions is to imagine other ways in which these problems must be sorted out. When a client has a problem, and they say they want a trusted advisor, what they really want  is access to reliable expertise, and this is being worked on in the field of AI. Our technology is becoming more and more capable. Future clients will happily go for that even if they lose the surrounding aura or trappings of a traditional legal advisor.
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NHS should consider protein-control treatment for PKU child

18 August 2017 by

SB, R (on the application of NHS England) [2017] EWHC 2000 – read judgment

The High Court has quashed a decision by NHS England refusing to fund the drug Kuvan for a young boy who has a condition inhibiting his ability to digest protein.

This case involves a number of important issues, such as the allocation of resources under the NHS, the extent to which courts may interfere with healthcare choices, and the role of “rights” in these decisions, including the welfare of the child. David Hart QC discusses these issues in detail with Rosalind English in the latest podcast in our Law Pod UK series; here is a brief summary.

The seven-year-old child has severe autism and phenylketonuria (PKU), an inherited metabolic disorder. The mainstay of PKU treatment is  a strict dietary regime which restricts the intake of high protein foods.  But because of his autism, SB is unable to understand and therefore abide by these food restrictions. Consequently his doctors sought funding for the drug Kuvan (sapropterin dihydrochloride), which would allow him to get a proportion of vitamins and minerals from ordinary food. If he were to respond to the drug, the levels of protein in his blood would fall below the level at which he risked irreversible brain damage. However, his consultant acknowledged that his overall development outcome would mostly be affected by the severity of his autism rather than his PKU and that Kuvan would not be expected to significantly alter or improve his behaviour.​

The funding panel accepted that SB fulfilled the conditions for exceptional need but the lack of long-term prospects for improvement meant that his application did not pass the “clinical effectiveness” test.

Andrews J found that this decision was flawed and remitted it for reconsideration, with the caveat that the funding panel may be entitled to continue to decline treatment on different grounds.

Listen to Episode 9 of Law Pod UK, available for download on iTunes

 

New podcast on radicalisation

9 August 2017 by

Just posted: Marina Wheeler QC in conversation with Rosalind English about efforts to preempt and limit the influence of extremist materials on children in the family courts. In this interview Marina also discusses the implementation of the government’s counterterrorism “Prevent” strategy against adults who are suspected of starting down a pathway towards terrorism but who have as yet committed no crime. The podcast is now available on iTunes as Episode 8 in our series.

To listen, click on the Law Pod UK banner on the top right hand of the home page.  You can access this and other free episodes of Law Pod UK, including David Hart QC on the Brexit Bill and its implications for the environment. Read more about David Hart’s concerns about the potential loss of right to sue for breach of EU law under the rule in Francovich in The Times: https://www.thetimes.co.uk/article/brexit-bill-will-remove-right-to-sue-government-750dhfjj3?shareToken=09ea60e3150edafe920c43e542df0351

Prevent Duty Guidance withstands “clamorous” criticism – Marina Wheeler QC

5 August 2017 by

R (Salman Butt) v Secretary of State for the Home Department [2017] EWHC 1930 – read judgment

In the wake of the London and Manchester attacks, the government’s counter-terrorism strategy is increasingly in the news and under scrutiny.  Radicalisation is  a difficult concept to map on to a system like ours, which separates the definition of criminal behaviour and punishment from civil sanctions. In this week’s podcast, Marina Wheeler discusses some of the ways the law is trying to cope (Law Pod UK Episode 8, available free on iTunes). She and others from 1 Crown Office Row will be discussing this and related issues at a seminar on Monday 11 September. 

At the end of July 2017, Mr Justice Ouseley upheld one element of the government’s counter-terrorism strategy – the Prevent Duty Guidance to universities (and other further and higher education bodies) which aims at “stopping extremists from radicalising students on campuses”.  He also rejected a complaint that the work of the Home Office’s Extremism Analysis Unit (EAU), breached the Article 8 privacy rights of the claimant, Dr Salman Butt.

We posted a summary of this ruling last week. 1 Crown Office Row’s Oliver Sanders and Amelia Walker represented the Secretary of State. Paul Bowen QC and Zahra Al-Rikabi represented Dr Butt.

In 2011 the Strategy was revised to cover the journey from extremism towards terrorist-related activity (including by the far-right). This attracted criticism, examples of which were collated and presented to support the claimant’s challenge to the lawfulness of the measures.  But Ouseley J dismissed all heads of claim, observing that he was

not concerned with whether some oppose the CTSA, or regard the Prevent Duty as counter-productive or have made it so, deliberately or through misunderstanding it.

What was decisive in this case was the absence of evidence that the Prevent Duty Guidance had had a chilling effect on free speech or academic freedom, as claimed.  The Prevent Duty Guidance, under section 26 of the CTSA, only came into force in 2015.  As those who apply it gain experience and confidence, they will make better judgments. But there will always be some mistakes. One way to avoid these is to have constructive discussion about the process, informed by evidence, not drowned out by “clamorous” criticism.
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Extremists on campus

4 August 2017 by

Butt v Secretary of State for the Home Department [2017] EWHC (Admin) 26 July 2017 – read judgment

Oliver Sanders and Amelia Walker acted for the Home Secretary in this case. They have nothing to do with the writing of this post.

The High Court has thrown out a number of challenges to the government’s efforts to prevent extremism on university platforms.

In 2015 the Home Office released guidance regarding its initiative to tackle extremism in universities under the Counter-Terrorism and Security Act 2015, CTSA.  The press release referred to 70 events on campuses featuring “hate speakers”. The claimant Dr Butt was among six named as “expressing views contrary to British values”.
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Northern Irish police officers join gay pride parade in Belfast

3 August 2017 by

Marches are popular in Belfast, and now is the marching season. Since the decline of sectarian violence in Northern Ireland these displays of loyalty have ceased to attract the controversy they did. Until this week, at least, in the run up to the Belfast Pride march on Saturday 5 August.  The Irish Times reports that uniformed gardaí from the Republic of Ireland are due to join their Police Service of Northern Ireland colleagues, also in uniform, at this year’s gay pride parade in Belfast on Saturday.

The PSNI already has confirmed that for the first time its members will be permitted to parade at the Belfast Pride event in uniform. Previously they could march in civilian clothing only.

Now the PSNI has invited the Gardai to accompany them at the parade, an invitation that has been accepted. PSNI vehicles with signs reading “Policing with Pride – Hate Crime is Unacceptable – To Stop It, Report It” will feature at Pride events in Belfast, Newry and Derry.

The local press is loud with criticism of this decision, which, it is said, privileges LGBT discrimination over other forms of hate crime. Critics have  pointed out that the PSNI would be “unlikely” to allow uniformed officers to take part in a Christian march that expressed a view that homosexuality was a sin. The PSNI is governed by a code of neutrality, and they are prohibited from participating in political protests.

The PSNI are supposed to be neutral and are prohibited by their own code of ethics from participating in political activity. There is also a duty on the PSNI, under article 6.2 of their code of ethics, to treat all persons equally regardless of status.  Loyalists have claimed that there is no community that has experienced more hate crime than the Orange community, with hundreds of arson and criminal damage attacks on their halls. “But no one is suggesting that the PSNI should show opposition to these crimes by participating in Orange parades,” Jim Allister of the Traditional Unionist Voice added. Other voices from the loyalist sector have asked whether the “liberal left” would be

so supportive of the PSNI marching alongside a loyalist flute band with a banner saying “End the hatred of Orange culture – report all attacks on Orange Halls”?

The parade, which campaigns, amongst other things, for the legalisation of gay marriage in Northern Ireland, is marked as sensitive on the Parades Commission website.  For this reason questions have been raised about the practical consequences of police participation; how can the event be impartially policed when uniformed officers are amongst the marchers?

Northern Ireland is the only region of the UK where gay marriage remains outlawed.

 

 

The end of a chapter

25 July 2017 by

Great Ormond Street Hospital v Yates and Gard –  [2017] EWHC 1909 (Fam) – read judgment

A lot of things have been said, particularly in recent days, by those who know almost nothing about this case but who feel entitled to express opinions. Many opinions have been expressed based on feelings rather than facts.”

So said Francis J, when dealing with an unusual application by Great Ormond Street Hospital (Gosh) asking for an order, rather than a declaration, that Charlie Gard should be allowed to slip away quietly.  The involvement of the White House, the Vatican, the Bambino Gesu Children’s Hospital in Rome and Dr. Hirano and the associated medical centre in the USA  in this story demonstrates the fact that a mere declaration carries too much ambiguity to allow the hospital staff to do what the courts have approved. The terms in which Gosh put its application were unambiguous indeed:

Therefore orders are sought to remove any ambiguity; orders are enforceable. Despite all of the hospitals best endeavours, this appears as potentially necessary. Not for the first time the parents through their solicitors raised the prospect of criminal proceedings against the hospital and its staff. The Hospital understands that no court order best interests proceedings can afford it or its staff from prosecution.

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