Media By: Rosalind English
8 December 2017 by Rosalind English
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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6 December 2017 by Rosalind English
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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30 November 2017 by Rosalind English
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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28 November 2017 by Rosalind English
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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28 November 2017 by Rosalind English
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.
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17 November 2017 by Rosalind English
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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13 November 2017 by Rosalind English
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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27 October 2017 by Rosalind English
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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27 October 2017 by Rosalind English
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)
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26 October 2017 by Rosalind English
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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22 October 2017 by Rosalind English
ARB v IVF Hammersmith Ltd [2017] EWHC 2438 – read 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.
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11 October 2017 by Rosalind English
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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1 October 2017 by Rosalind English
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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1 October 2017 by Rosalind English
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
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29 September 2017 by Rosalind English
... 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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