Media By: Rosalind English


Judges once again avoid right to die issue

2 April 2017 by

Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640 – read judgment

Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act  was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).

Background facts and law

The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP [2009] UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not “institutionally appropriate” to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.

In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.

The Court concluded – with an interesting dissent from Charles J – that  this was a matter for parliament.  A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.

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Convention’s prohibition on discrimination may apply to pre-Human Rights Act wills

30 March 2017 by

Hand and Anor v George [2017] EWHC 533 (Ch) (Rose J, 17 March 2017) – read judgment

The Adoption of Children Act 1926 s.5(2) had the effect that adopted children were not treated as “children” for the purposes of testamentary dispositions of property. The continuing application of this provision was a breach of the rights guaranteed by Article 14 in combination with Article 8 of the Convention. Therefore, the contemporary version of that provision, Adoption Act 1976 Sch.2 para.6, had to be read down so as to uphold the right not to be discriminated against.

Background Facts and Law

Henry Hand died in 1947. He was survived by his three children, Gordon Hand, Kenneth Hand and Joan George. In his will dated 6 May 1946, Henry Hand left the residue of his estate to his three children in equal shares for life with the remainder in each case to their children in equal shares. The question at the centre of this claim was whether adopted children count as “children” for the purposes of this will. Under Section 5(2) of the Adoption of Children Act 1926, which was in force at the relevant time, adopted children were not included as “children” for the purposes of a testamentary disposition of property.

The claimants, the adopted children of Kenneth Hand, accepted that under the domestic law in force, they were not included and their father’s share of the Henry Hand trust would go to the their cousins the defendants. However, the claimants maintained that they can rely on their rights under Article 14 of the European Convention of Human Rights in conjunction with Article 8 to override the discriminatory effect of that domestic law so that they are treated as equals with the birth grand-children of Henry Hand. The defendants argued that the ECHR could not be applied to interpret an instrument that was drawn up at a time before it existed.
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Rape, incest and damage: but who is the real victim?

15 March 2017 by

Criminal Injuries Compensation Authority v First Tier Tribunal (Social entitlement Chamber) and Y by his mother and Litigation Friend  [2017] EWCA Civ 139

The predictability of genetic disorders continues to challenge existing law. Here, the Court of Appeal had to consider whether a child born as a result of incestuous rape could claim compensation under the Criminal Injuries Compensation Scheme (CICS) for his congenital disabilities. These were 50% predictable as a result of the nature of his conception, as opposed to 2-3% in the general population.

The court ruled against eligibility for such claims, partly because English law does not recognise so-called claims for “wrongful life”, and partly because harm caused before birth which has consequences after birth cannot be treated as an injury sustained by a living person. But the main reason for keeping the gates closed for compensation in these circumstances is that the child concerned never had, nor could have, any existence save in a defective state.
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More vaccine litigation

9 February 2017 by

swine_flu_vaccine313John (A Minor: Vaccine Damage Payments scheme), Re [2017] EWCA Civ – read judgment

As commentators to my previous post on immunisation have pointed out, vaccinations are not cost-free. But the benefit of eliminating pathogens through herd immunity is generally agreed to outweigh the occasional risk to individuals. Acknowledging that there are such risks,  the government has run a modern compensation system since 1979 for people who are “severely disabled” as a result of vaccination (now the 2012 Vaccine Damage Payments Scheme). The initial scheme was put in place in response to side effects of the whooping cough vaccine.

The question before the Court of Appeal in the present case was whether the determination of the severity of a person’s disablement could take account of prognosis. If an individual has been assessed as having a lifelong condition, is the state obliged to compensate them for future disabilities?

Yes, said the Court of Appeal: this is not speculation, our legal system is used to it. It is the “very stuff” of personal injury litigation.

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Should courts order vaccination against parents’ wishes?

8 February 2017 by

Vaccine in vial with syringe. Vaccination concept. 3d

Vaccine in vial with syringe. Vaccination concept. 3d

SL (Permission to Vaccinate), Re 2017 EWHC (Fam) EWHC (30 January 2017) [2017] EWHC 125 (Fam)

The alleged risks attending on vaccination were outweighed by the benefits of immunisation by a clear margin, the Family Court has ruled.

Background facts

The seven month old baby SL was subject of an interim care order. The mother (the third respondent) objected to immunisations on the basis that her other children had suffered adverse reactions from them in the past. The local authority applied under the court’s inherent jurisdiction for a declaration that it was in the child’s interests for it to be given permission to arrange for him to receive the Haemophilus Influenza Type b (Hib) vaccine and the pneumococcal conjugate (PCV) vaccine.
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Computer algorithm predicts most Strasbourg judgments

22 January 2017 by

brainwigArtificial intelligence … it’s no longer in the future. It’s with us now.

I posted a review of a book about artificial intelligence in autumn last year. The author’s argument was not that we might find ourselves, some time in the future, subservient to or even enslaved by cool-looking androids from Westworld. His thesis is more disturbing: it’s happening now, and it’s not robots. We are handing over our autonomy to a set of computer instructions called algorithms.

If you remember from my post on that book, I picked out a paragraph that should give pause to any parent urging their offspring to run the gamut of law-school, training contract, pupillage and the never never land of equity partnership or tenancy in today’s competitive legal industry. Yuval Noah Harari suggests that the everything lawyers do now – from the management of company mergers and acquisitions, to deciding on intentionality in negligence or criminal cases – can and will be performed a hundred times more efficiently by computers.

Now here is proof of concept. University College London has just announced the results of the project it gave to its AI researchers, working with a team from the universities of Sheffield and Pennsylvania. Its news website announces that a machine learning algorithm has just analysed, and predicted, “the outcomes of a major international court”:

The judicial decisions of the European Court of Human Rights (ECtHR) have been predicted to 79% accuracy using an artificial intelligence (AI) method.

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Sanctity of life v personal autonomy: Court of Protection

3 January 2017 by

brainmapBriggs v Briggs & Ors [2016] EWCOP 53 (20 December 2016) – read judgment

Apologies for starting the new year on such a sombre note, but there is a shaft of light in that this Court of Protection judgement is a clear indication that judges – or some of them – are prepared to favour an individual’s autonomy over the traditional emphasis on the sanctity of life above all else.

As Charles J points out, this case raises issues of life and death and so vitally important principles and strongly held views. The decision he had to make was whether a part of the current treatment of Mr Paul Briggs, namely clinically assisted nutrition and hydration (CANH), should be continued. Mr Briggs was in a minimally conscious state (MCS) as the result of serious and permanent brain damage he suffered as the victim of a traffic accident eighteen months ago. He was not in a permanent vegetative state (PVS) and so the approach taken by the House of Lords in the Tony Bland case did not apply to him (Airedale NHS Trust v Bland [1993] AC 789). In that case, it will be remembered, their Lordships concluded that the continuation of life in such a state was futile. Problems arose with subsequent advancements in neurological diagnosis, where a less catastrophic condition known as MCS was established. In 2012 a court ruled that a patient in MCS could not be deemed to have made an advance directive regarding medical treatment even though during her lifetime she had made her position very clear that she would not want to continue living in such a reduced state (Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [2012] 1 WLR 1653). Her views did not, in their view, encapsulate the state of MCS. See my post on that decision here. Baker J’s refusal of the family’s application to allow treatment to be withdrawn came in for severe criticism in the British Medical Journal (see Richard Mumford’s post on that article). The author took Baker J to task for not according significant weight to the informally expressed views of M on life-sustaining treatment, expressed before she came ill. Charles J took a very different approach in this case.
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Aggrieved student wins right to challenge degree grade in full trial

9 December 2016 by

mortarboard-svgSiddiqui v University of Oxford [2016] EWHC 3150 (5 December 2016) – read judgment

This case raises the interesting question of whether a disappointed graduate may call upon the courts to redress a grievance concerning the grade he was given for his degree; not just what his ground of claim should be, but whether this is the kind of grievance which should be navigated through the courts at all. There are some matters which are arguably non-justiciable matters of academic judgment.

The facts of the case may be summarised briefly. The claimant is a former history student at Brasenose College, Oxford. The defendants are, or the defendant is, collectively, the Chancellor, Masters and Scholars of the University of Oxford. The defendant is referred to throughout as the University.

The claimant sat his final examinations in June 2000 and obtained an Upper Second Class Bachelor of Arts Honours degree in history. His claim against the University was for damages for negligent teaching leading, he alleges, to him failing to get a higher 2:1 or a first class degree which, he said, he would otherwise have achieved.

The University applied to strike out the claim and/or for summary judgment on the ground that it was hopelessly bad on the merits and also plainly time barred.
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Corporeal freedom after death?

20 November 2016 by

cryonics-tanksJS (Disposal of Body), Re [2016] EWCH (Fam) (10 November 2016) – read judgment

A great deal has been written about this case but few of the headlines reflect the humanity and sensitivity of the decision, which may not be ground breaking nor precedent setting, but reflects how the law should respond to individual wishes if those play out in a way that cannot harm anyone else. Post-mortem cryonics may have a certain morbid ring, but it is a matter of individual choice, provided the resources are there to pay for it. As the judge observed, it was

 no surprise that this application is the only one of its kind to have come before the courts in this country, and probably anywhere else. It is an example of the new questions that science poses to the law, perhaps most of all to family law.

Background facts and law

Peter Jackson J was faced with an application from JS, a 14 year old cancer patient whose condition had become untreatable. After researching the diminishing options available to her, JS had come across cryonics, the freezing of a dead body in the hope that resuscitation and a cure may be possible in the distant future. The science ofcryopreservation, the preservation of cells and tissues by freezing, is now a well-known process in certain branches of medicine, for example the preservation of sperm and embryos as part of fertility treatment. But whole body cryopreservation has not been achieved in any mammal species, largely due to the difficulties of reviving brain tissue. As the judge said,

cryonics is cryopreservation taken to its extreme.

Only three organisations in the world provide this service, one in the United States being involved in this case. The cost is about ten times as much as the average funeral. Although JS’s family is not well off, her grandparents had raised the necessary funds. Whatever anyone may think of this procedure, there was no doubt about JS’s intelligence and her capacity to make this decision. She wrote, in response to asking to explain why she wanted “this unusual thing done”:

 I’m only 14 years old and I don’t want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years’ time. I don’t want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish.”

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Segregation in faith schools does not offend Equality Act: High Court

10 November 2016 by

largeThe Interim Executive Board of X School v Chief Inspector of Education, Children’s Services and Skills  [2016] EWHC 2813 (Admin) – read judgment

The principal issue in this  application for judicial review was whether a mixed school unlawfully discriminated against its male and/or female pupils by making “parallel arrangements” for their education in the same building or by applying a regime of “complete segregation” for all lessons, breaks, school clubs and trips. There was no evidence that either girls or boys were treated unequally in terms of the quality of the education they received (in the sense of one sex receiving a lower quality of education than the other).

This case raises a point of general public importance as to the true construction and application of key provisions in the 2010 Equality Act. As the judge observed, it was a point which had not arisen before, and so should be answered on “a first principles basis, applying standard interpretative tools to the language, policy and objects of the statute.”
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Mother’s determination that child was “gender variant” did him significant harm – Family Court

1 November 2016 by

Father-and-child-holding--006J (A Minor), Re [2016] EWHC 2430 (Fam) 21 October 2016 – read judgment

These proceedings concerned a care order sought by the local authority in respect of a seven year old boy (J). The judge found that his mother, who had separated from his father within 12 months of J’s birth, had caused her son significant emotional harm by making him live as a girl. The care order sought would allow J to continue to live with his father, in whose care he had flourished.

After the separation J had stayed with his mother. Contact arrangements broke down in 2013, causing the father to apply for a child arrangements order. Contact was consistently opposed by the mother. In 2013 and 2014, various agencies raised concerns with the local authority about the mother’s mental health and the fact that J was presenting as a girl. The mother had claimed that J was “gender variant” and should be allowed to go to school dressed as a girl. Social services were concerned that he was made to wear a pink headband and nail polish. And indeed at a hearing in November 2015, the mother told the court that J was living life entirely as a girl: he dressed like a girl and had been registered with a GP as a girl. She was reported to be considering sending the child to a gender reassignment clinic. As the judge said, when all this was properly analysed it was clear that “flares of concern were being sent from a whole raft of multi disciplinary agencies.

Each was signalling real anxiety in respect of this child’s welfare. Whilst it is, I suppose, conceivable that these referrals were considered individually, it is impossible to draw any inference other than that they were never evaluated collectively.

The local authority, concluded Hayden J, had “consistently failed” to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. It was “striking” that the local authority had moved into wholesale acceptance that J should be regarded as a girl.

Once again, I make no apology for repeating the fact that J was still only 4 years of age.

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Belfast court dismisses Brexit challenge

30 October 2016 by

eu-1473958_1920McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016) – read judgment

A challenge to the legality of the UK’s departure proceedings from the EU has been rejected by the High Court in Northern Ireland. In a judgment which will be of considerable interest to the government defending a similar challenge in England, Maguire J concluded that the UK government does not require parliamentary approval to trigger Article 50 of the Lisbon treaty. This is, par excellence, an area for the exercise of the government’s treaty making powers under the Royal Prerogative.

See our previous post on Article 50 and a summary of the arguments in the English proceedings.

This ruling was made in response to two separate challenges. One was brought by a group of politicians, including members of the Northern Ireland assembly, the other by Raymond McCord, a civil rights campaigner whose son was murdered by loyalist paramilitaries in 1997. They argued that the 1997 peace deal (“the Good Friday Agreement”) gave Northern Ireland sovereignty over its constitutional future and therefore a veto over leaving the EU. Like the English challengers, they also argued that Article 50 could only be invoked after a vote in Parliament.

At centre stage in the English case is the means by which Article 50 TEU is to be triggered and the question of the displacement of prerogative executive power by statute.  While this issue was also raised in the challenge before the Northern Ireland court, Maguire J also had before him a range of specifically Northern Irish constitutional provisions which were said to have a similar impact on the means of triggering Article 50. To avoid duplication of the central issues which the English court will deal with, this judgment concerned itself with the impact of Northern Ireland constitutional provisions in respect of notice under Article 50.

However, the judge had some clear views on the role of prerogative powers in the Brexit procedure, which, whilst respecting the outcome of the English proceedings, he did not hesitate to set out.
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Subsidy withdrawal from renewable energy entirely lawful – Court of Appeal

26 October 2016 by

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Infinis Energy Holdings Ltd v HM Treasury and Anor [2016] EWCA Civ 1030 – read judgment

In July 2015 the government announced that it was removing a subsidy for renewable energy. Its decision in fact was to take away the exemption that renewable source electricity enjoyed from a tax known as the climate change levy. We have covered previous episodes in the renewables saga on the UKHRB in various posts.

The appellant, the largest landfill gas operator in the UK and one of the leading onshore wind generators, challenged the government’s removal of the subsidy on the basis of the EU law principles of foreseeability, legal certainty, the protection of legitimate expectations or proportionality. At first instance the judge upheld the Secretary of State’s decision, and the Court of Appeal dismissed the appeal against this finding.

Legal and Factual Background

The subsidy took the form of an exemption for renewable source electricity (RSE) such as that provided by the appellant’s company, from the climate change levy (CCL). (The judgment is replete with these acronyms so it’s worth getting to grips with them before reading.)

Jay J, the judge at first instance, summarised the government’s reasons for removing the exemption. The government wanted to move away from a system of indirect support to one of direct support, the latter being more efficient and cost-effective. The exemption, it was said, benefited foreign generators and there were incentives and support in place that would continue to support domestic generators of renewable energy.  The government had considered the impact of this decision on companies such as Infinis,  but it was decided that it was outweighed by the public interest. 
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Prosecution of Italian traffickers can go ahead even after Romania’s accession to EU

10 October 2016 by

italy_immigrationPaoletti and others (Judgment) [2016] EUECJ C-218/15 (6 October 2016) – read judgment

The Court of Justice of the European Union (CJEU) has ruled that people smugglers can be punished even if the illegal immigrants themselves have subsequently gained EU citizenship by dint of the relevant country’s accession to the EU.

Legal and factual background

The accused in the main proceedings had illegally obtained work and residence permits for 30 Romanian nationals in 2004 and 2005, before the accession of Romania to the EU. They were therefore charged with having organised the illegal entry of these Romanian nationals “in order to benefit from intensive and ongoing exploitation of foreign labour”. This law was introduced to the Italian criminal code in accordance with the EU directive requiring the prevention and punishment of people smuggling (Article 3 of Directive 2002/90 and Article 1 of Framework Decision 2002/946, which provide that such an offence is to be punishable by effective, proportionate and dissuasive penalties).
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“British Troops to be Exempted from Human Rights Law”

4 October 2016 by

british-army-troops-iraq..is the headline of the leading article in The Times today.

Theresa May vows to end ‘vexatious claims’ against service personnel. In the UK about £100 million has been spent since 2004 dealing with thousands of cases lodged against soldiers who served in Iraq. Many were launched under ECHR laws on rights to life and liberty.

Apparently the Prime Minister will announce today that under proposals she has put forward, Britain plans to opt out of international human rights law when it goes to war. British troops will be free to take “difficult decisions” on the battlefield without fear of legal action when they come home. This move follows an outcry over investigations into thousands of claims against soldiers by a government body examining alleged human rights abuses in Iraq. Mrs May said that the plan would

put an end to the industry of vexatious claims that has pursued those who served in previous conflicts.

Britain will put in place temporary derogations against parts of the Convention before planned military actions.

Since the Convention has been extended to cover actions by soldiers outside the jurisdiction of the UK and other signatory states, many senior officers have warned that operations will be undermined by soldiers wary of taking risks.
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