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The decision of the Court of Protection in Rotherham and Doncaster and South Humber NHS Foundation Trust and NR [2024] EWCOP 17 is the latest in a line of cases where the Court has been asked to determine whether a termination of pregnancy is in a woman’s best interests. Any case about a termination engages the pregnant woman’s Article 8 rights. But where the woman also lacks capacity to decide for herself whether to have a termination, there must be a particularly careful analysis to ensure that her rights are respected. While previous decisions have frequently accorded weight to the wishes and feelings of the pregnant woman at the heart of the case, Mr Justice Hayden’s decision goes further in handing the decision over to the pregnant woman herself.
I argue that both perspectives are misleading in some important respects. While there were some genuine innovations on standing, particularly for associations (which have been covered by others already), the decision on the substance of the Convention rights is far from a doctrinal revolution. Klimaseniorinnen is best understood as an extension of three well-established principles from ECHR environmental cases: (1) the crucial importance of procedural requirements, particularly the exhaustion of domestic remedies, (2) the application of Articles 2 and 8 ECHR requiring regulation and enforcement, including with respect to risks that have not (yet) materialised, and (3) the preference for Article 8 ECHR over the lex specialis in Article 2 ECHR.
Overall, the margin of appreciation looms large in the Klimaseniorinnen and ultimately, the ECHR remains on the outer margins of climate change policy: unless states do not have any greenhouse gas reduction targets, or choose not to enforce them, they are unlikely to exceed the margin of appreciation. Notably, the judgment does not require any particular reduction targets or mitigation measures ([547]), nor does it enforce the Paris Agreement via the Convention ([543]).
These two appeals both concern Section 20 of the Extradition Act 2003 (“the Act”) which deals with convicted individuals who are subject to convictions in their absence. Trials in absentia are extremely common in civil law jurisdictions and it is sometimes said that there is the possibility of unfairness arising from a trial with an absent defendant
Section 20(3) requires an extradition judge to decide whether or not a person has deliberately absented themselves from their trial. In those circumstances they can be extradited to serve a sentence without an entitlement to a retrial.
If the Court determines that the person was not deliberately absent Section 20(5) must be addressed and it is necessary to decide if they would be entitled to a retrial or (on appeal) a review amounting to a retrial. The case of Bertino considered deliberate absence within Section 20(3) and Merticariu the right to a retrial within Section 20(5).
These issues are integral to the protection of Article 6 of the ECHR. It is plain that deliberately absenting oneself from a trial would not subject someone to a violation of Article 6 but the two basic principles of that Article are the right to be present and the right to be represented (Bertino §27).
Bertino: the facts
The Appellant’s extradition was sought pursuant to a European Arrest Warrant (“EAW”) issued for his extradition to serve a year’s imprisonment after trial in his absence at the Italian Court of Pordenone. He was convicted for the offence of sexual activity with an under-age person.
The Appellant signed a document confirming that he was under investigation and he “elected domicile” in Italy. The document stipulated that he was obliged to notify the authorities of any change of address. Without such a notification service of any document would be executed by delivery to his lawyer. Mr Bertino elected his domicile by giving an address in Venetico, Messina and also indicated that he would be assisted by a court-appointed lawyer.
However he then left the country in November 2015 and came to the UK where he began to work. Meanwhile the prosecution in Italy commenced on 8 June 2017, a writ of summons for the court hearing was issued on 12 June 2017 and he was summoned to appeal at the Pordenone Court on 28 September 2017. The summons included a warning that his non-attendance without “lawful impediment” would lead to judgment in his absence. However he had never received the summons and by then the judicial authority knew that he was no longer at the address in Venetico. He had also failed to notify the authorities of any change of address.
There were then many unsuccessful attempts to trace him in Italy between 2016 and 2019. The Appellant did tell Westminster Magistrates’ Court that he had informed the authorities of his departure to the UK for family law purposes because, by then, his marriage was failing and arrangements were to be made for the children, but not the police in connection with the investigation.
The Council Framework Decision
EAWs must be drafted in a prescribed form according to the Council Framework Decision of 26 February 2009 2009/299/JHA, and there are various options which the issuing judicial authority is required to tick. In this case the EAW indicated that he was absent from his trial. There are a range of boxes for indicating, roughly, why this was; in Mr Bertino’s case none of those boxes was ticked and the evidence was that he was unaware of the date and place of his trial and even that there had been a decision to prosecute him.
The Deputy Senior District Judge ordering extradition found that, because the Appellant left his address without notifying a forwarding address and then came to the UK he had demonstrated a “manifest lack of diligence” [§10], a phrase echoing Court of Justice of the European Union case law.
On appeal Swift J found that there was no reason in principle to distinguish between a requested person’s awareness of the date and place of trial and the knowledge that if he does not attend trial he could be tried in absentia. This, he observed, is in accordance with Article 6 ECHR which guarantees a person’s right to be present at trial but that right, so he said, could be waived expressly or by inference.
Swift J certified the following point of law of general public importance:
For a requested person to have deliberately absented himself from trial for the purpose of Section 20(3) of the Extradition Act 2003 must the requesting authority prove that he has actual knowledge that he could be convicted and sentenced in absentia?
The Court’s conclusions on the law
If the EAW is used to convey information which demonstrates that one of the criteria from the 2009 Framework Decision is met that is normally determinative of whether or not the extraditee can be considered deliberately absent (§44). However the Framework Decision (§45) acknowledges that the question of whether or not to extradite is a matter of domestic law when none of the criteria has been satisfied. Consequently Section 20 falls to be analysed.
The phrase “deliberately absented himself from his trial” is the same, under Strasbourg jurisprudence, as the suggestion that an accused has unequivocally waived his right to be present at trial. If those circumstances lead to a finding of a breach of Article 6 then the judge must be required to consider retrial rights under Section 20(5). However if the trial in absentia did not lead to a breach of Article 6 then the person will have deliberately absented himself from his trial.
It is also for the requesting judicial authority to prove to the criminal standard that an appellant has unequivocally waived his right to be present at his trial.
Application of the facts to the law
The Appellant was never arrested, charged or questioned. He was never informed that he was to be prosecuted and was never notified of the time and place of his trial (§50). He knew that he was suspected of a crime which was being investigated but there was no certainty that he would subsequently be prosecuted. When he left Italy, without giving the judicial police a new address, there were no criminal proceedings of which he could have been aware and definitely no trial from which he could have deliberately absented himself. This was the basis upon which the Supreme Court ruled that the Courts below had erred in finding that he had deliberately absented himself.
At paragraph 52 the Court stated that the Magistrates’ Court and the High Court had inferred that he had unequivocally and intentionally waived his right to be present at his trial by finding that he could reasonably foresee that the trial would proceed in his absence. The Supreme Court noted that the concepts of waiver and reasonable foreseeability were from Strasbourg case law and were not synonymous with the same concepts in English private law. The Strasbourg standard is that, in order for a waiver to be unequivocal and effective, knowing and intelligent, the accused must ordinarily be shown to have appreciated the consequences of their own behaviour and will usually require them to have been warned (§54).
The District Judge had described the Appellant’s “manifest lack of diligence” but the Supreme Court concluded (§55) that this would not have been a waiver by the fact that he could have avoided the situation which led to an impairment of his rights. It was on that basis that the Supreme Court found that the courts had previously overly broadened the definition by finding that deliberate absence is found where the person’s conduct led to him becoming unaware of the date and time of trial. However (§58) these cases are clearly to be considered on their individual facts and there may be circumstances where accused people knowingly and intelligently place themselves beyond the jurisdiction of the prosecuting and judicial authorities so that a trial in their presence is impossible and they could be considered to appreciate that a trial in absentia is the only option.
The Court therefore ruled that Mr Bertino did not unequivocally waive his right to be present at his trial and was not deliberately absent. The appeal was therefore allowed.
Merticariu: the facts
The EAW was issued in 2019. District Judge Ezzat gave judgment on 26 August 2020 and found that Mr Merticariu had not deliberately absented himself from his trial but did have a right to a retrial in Romania and therefore, with this apparent guarantee, extradition was ordered.
On appeal (§6) to the High Court Chamberlain J dismissed the appeal, having found that he was bound by the authority of BP v Romania [2015] EWHC 3417 where the Divisional Court held that Section 20(5) of the Act will be satisfied even if the right to a retrial is conditional on a finding in the requesting state that the person was not deliberately absent from their trial.
The certified question
Chamberlain J certified the following question of general public importance arising from his decision. He refused leave to appeal.
In a case where the appropriate judge has decided the questions in section 20(1) and (3) of the Extradition Act 2003 in the negative, can the appropriate judge answer the question in section 20(5) in the affirmative if (a) the law of the requesting state confers a right to retrial which depends on a finding by a judicial authority of that state as to whether the requested person was deliberately absent from his trial; and (b) it is not possible to say that a finding of deliberate absence is ‘theoretical’ or ‘so remote that it can be discounted’? If so, in what circumstances?
The decision
As a Romanian extradition case the High Court considered Article 466 of the Code of Criminal Procedure which provided that the person has a “right to ask for a retrial of the case”(§34). However this was not sufficient for the Supreme Court. The “natural and ordinary” meaning of the words in Section 20(5) were clear. It is not solely a question of being entitled to apply for a retrial. The answer to the question in Section 20(5) should not be “perhaps” or “in certain circumstances” (§51). The entitlement to a retrial therefore cannot be contingent on the court making a factual finding that the person was not present at or was not deliberately absent from their trial. The question is clear: are they entitled to a retrial or (on appeal) to a review amounting to a retrial?
The decision in BP was therefore wrong at paragraph 44 where it stated that an application for a retrial was a procedural step contingent on the court determining whether the person had or had not instructed a lawyer to represent her at her trial (§52). The 2009 Framework Decision replaced “an opportunity to apply for a retrial” with “a right to a retrial.”
The Supreme Court also agreed that the right to a retrial was consistent with Strasbourg principles where there is a “duty to guarantee the right of a criminal defendant to be present in the courtroom” (§54). It is consistent with Article 6 obligations.
Furthermore the principle of mutual trust and confidence, which pervades extradition arrangements between the UK and EU (§60) runs both ways because the issuing judicial authority takes part and is represented in the proceedings in the UK court and it would be entirely in accordance with this principle that courts in requesting states respect the executing courts’ decisions in this country.
The answers to the certified questions
The Supreme Court found that an appropriate judge cannot answer Section 20(5) in the affirmative if the law confers a right to a retrial which depends on a finding by a judicial authority as to whether the person was deliberately absent from their trial.
In relation to (b) of the question the Court found that it is for the issuing judicial authority to provide information in the EAW or in response to a request for further information. The executing court should not take part in a “mini trial” as to whether, on the facts and law of the requesting state, a finding is theoretical or so remote that it can be discounted. The evidence should be clear. (§64)
The application to the case
Given that the judicial authority in this case was unable to confirm whether or not the Appellant had a right to a retrial and Article 466 of the Romanian Code of Criminal Procedure demonstrated that he would not be regarded as having been tried in absentia he had no right to a retrial (§67).
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In Bertino, This decision represents a pendulum swing from the past ten years of High Court authority where the concept of “manifest lack of diligence” had imposed a significant level of responsibility on a person who may not have fully understood the consequences of their decision to leave the country after they may have only been partly aware of a criminal prosecution. It provides a greater protection to those lay persons who assume that the authorities will contact them. It also now requires District Judges to exercise greater inquiry into the circumstances of an individuals departure from the country which requests their extradition.
In Merticariu, the Supreme Court has finally resolved what is a very short point. If the Court is required to consider Section 20(5) there can be no assumptions in these cases, in the absence of any clear evidence, that a right to a retrial exists. There was always a doubt that the requesting state’s s findings about deliberate absence would chime with those of the executing state and now they need to be considered together. These questions are fundamental to the fair carriage of extradition cases between the UK and EU. Whilst the earlier cases assumed compliance with Article 6 on the basis of mutual trust and confidence the UK courts now do not need to be so quick to reach the same conclusions and they will also offer greater protections to those who find themselves in our extradition courts.
In a significant ruling, the Court of Appeal has quashed the conviction of the appellant for an offence contrary to Section 1 of the Malicious Communications Act 1988 based on an email written to local councillors in a political dispute. In R v Casserly [2024] EWCA Crim 25, The Court gave guidance on – and placed emphasis on the importance of – directing juries on the right to free speech under Article 10 ECHR. The appeal considered the interaction between s 1 of the Malicious Communications Act 1988 and Article 10.
In Lord Tennyson’s Arthurian ballad ‘The Lady of Shalott’, the eponymous heroine is stranded in her island castle. Continually weaving a web in her loom of the reflections of the outside world she sees in her mirror, she knows she will be cursed if she stops and looks out to nearby Camelot. But one day, Sir Lancelot rides by her castle and she abandons her loom and looks outside. Her mirror cracks “from side to side” and she is cursed. She leaves her castle and floats down to Camelot in a boat, dying before she reaches it.
Victorian poetry scholar Erik Gray analyses the Lady of Shalott as Tennyson’s exploration of the role of an artist: knowing what is better (staying inside and looking at reflections of the real world) and choosing to do what is worse (going outside into the real world). Just as the Lady of Shalott’s mirror cracked, the Supreme Court in Dalton’s application for judicial review marked possibly one of the largest cracks yet in the mirror principle: that the rights provided under the Human Rights Act 1998 (HRA) should mirror those under the ECHR. But this analogy with the Lady of Shalott raises two important questions: was the jurisprudence flowing from the mirror principle better and is the turn away from it worse?
At the outset, I acknowledge my involvement in the Dalton litigation. This post is not an exploration of that litigation. Instead, I look at the possible impact of the Supreme Court’s judgment on the mirror principle and what it may tell us more broadly about the HRA.
The central question facing the Supreme Court in Griffiths v TUI UK Limited [2023] UKSC 48 concerned the extent to which a party must put criticisms of a witness’ evidence to him in cross-examination. The Supreme Court made clear that the general rule in civil cases is that a party is required to challenge by cross-examination the evidence of any witness (whether factual or expert) if he wishes to submit that the evidence should not be accepted by the court. Importantly, this rule is not confined to allegations that the witness is dishonest. The rule is, however, a flexible one; it will not always be necessary for every point of challenge to be put to a witness, and in some cases (such as where evidence is “manifestly incredible”) it may not apply at all. Although the Supreme Court gave a conceptually clear answer to the question before it, difficult practical issues are likely to continue to arise for trial advocates who wish to challenge factual or expert witness evidence.
The advent of the Human Rights Act 1998, and the incorporation into domestic law of the Article 2 right to life, has transformed coronial investigations and inquests over the last two decades. Lord Bingham’s magisterial creation of the ‘enhanced’ investigation and conclusion in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 (later adopted by Parliament) gave coroners greater responsibility to hold the state to account for deaths. That, in turn, has significantly improved the ways in which all inquests are conducted, not just those where Article 2 is found to be engaged. Inquests are no longer haphazard affairs. They are (ordinarily) carefully planned and structured processes; and their participants, the ‘interested persons’, are far more involved in assisting coroners with the task of identifying the proper scope of their investigations and the lawful ambit of their conclusions.
Article 2, then, has already conquered and occupied the terrain of the coroners’ courts and it is only at the frontiers of its application that legal skirmishes still occur. One such fight is the case of R (Maguire) v HM Senior Coroner for Blackpool & Fylde and another [2023] UKSC 20, which was argued before the Supreme Court on 22nd and 23rd November 2022, and in which judgment was given on 21st June 2023.
The central issue in the case was whether Article 2 required an enhanced inquest into the death of highly vulnerable woman, Jackie Maguire, who had become seriously unwell while in a private residential care home and had later died in hospital. The Supreme Court held unanimously that it did not. More importantly, in doing so, it took the opportunity to provide a detailed and authoritative account of how Article 2 applies to coronial investigations and inquests.
In R (Friends of the Earth Ltd) v Secretary of State for International Trade/UK Export Finance (UKEF) [2023] EWCA Civ 14, the Court of Appeal considered the implications of the Paris Agreement on climate change for governmental decision-making in relation to investing in a liquified natural gas project in Mozambique (the “Project”). Sir Geoffrey Vos MR, with whom Lord Justice Bean and Sir Keith Lindblom SPT agreed, dismissed Friends of the Earth’s appeal against the Divisional Court’s decision to dismiss their application for judicial review.
Photograph: Tom Pilgrim/PA; the Guardian.
The judgment sets out the approach which is to be taken where the government declares itself to be acting in accordance with the UK’s obligations under an unincorporated international treaty. The Court of Appeal also considered the well-established duty that a decision-maker must “ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 at 1065, known as the “Tameside duty”). Put briefly, the Court of Appeal held that:
the question of whether funding the Project was consistent with the UK’s international obligations under the Paris Agreement was accepted by the parties to be justiciable;
however, the Paris Agreement, as an unincorporated international treaty, did not give rise to domestic legal obligations;
having decided to have regard to the Paris Agreement, the respondents did not need to be right that funding the Project was consistent with it, so long as that view was “tenable”; and
failing to quantify the indirect greenhouse gas emissions from the downstream distribution, storage and use of the gas produced (known as “Scope 3” emissions) – which would undoubtedly be by far the greatest part of the emissions caused by the Project – before deciding to finance the Project, was not a breach of the Tameside duty.
In Privacy International v Investigatory Powers Tribunal, the Divisional Court held that s.5 Intelligence Services Act 1994 does not permit the government to issue general warrants to engage in computer network exploitation (“CNE”) – more commonly known as computer hacking. The court also offered valuable guidance on warrants and what is required to make them lawful.
The Issues
There were three issues:
1. Does s.5 Intelligence Services Act 1994 (“the 1994 Act”) permit the Secretary of State to issue ‘thematic’ or ‘general’ warrants to hack computers? General warrants are those which purportedly authorise acts in respect of an entire class of people or an entire class of acts (e.g. ‘all mobile phones in London’).
2. Should the court allow the claim to be amended to include a complaint that, prior to February 2015, the s.5 regime did not comply with Articles 8 and 10 of the European Convention on Human Rights?
3. If permission is given to amend the claim, should the new ground succeed?
Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44 – read judgment
The UK Supreme Court has unanimously granted an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 (the “1996 Act”), and therefore could not benefit from the whistleblowing protections it conferred.
In reaching its judgment, the Court held that the failure to extend those whistleblowing protections to judges amounted to a violation of the appellant’s right under Article 14 ECHR not to be discriminated against in her enjoyment of the Convention rights (in this case, her right to freedom of expression under Article 10 ECHR).
ARB v IVF Hammersmith & Another [2018] Civ 2803 (17 December 2018) – read judgment
Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful birth arising from a breach of contract.
The facts of the case are set out in my podcast on the first instance decision (Episode 12 of Law Pod UK). Briefly, an IVF clinic had implanted the claimant father’s gametes into his former partner without his consent. This occurred after the couple had sought fertility treatment at the clinic resulting in the birth of a son some years previously. Following standard practice, the clinic froze five embryos made with their gametes. Subsequently, the couple separated. Some time after this separation the mother, R, attended the clinic without ARB and informed the staff that they had decided to have another child. The form requiring consent from ARB for thawing and implanting the embyro was signed by R, and the clinic failed to notice the forgery. R went on to give birth to a healthy daughter, E, who is now the sibling of ARB’s son. There is a Family Court order confirming parental responsibility and shared residence in respect of both children. Continue reading →
Conway, R (on the application of) v Secretary of State for Justice [2018] UKSC B1: The Supreme Court has refused to hear an appeal from a sufferer of motor neurone disease, in the latest of a line of challenges to the UK’s ban on assisting suicide. The applicant was contesting the Divisional Court’s refusal to declare the statutory ban on assisting suicide to be incompatible with his article 8 rights.
The question for the court was whether his case raised “an arguable point of law of general public importance” which ought to be heard by the Supreme Court at this time. Whilst the points of law were undoubtedly arguable, and the public importance obvious, the court concluded “not without some reluctance” that the applicant’s prospects of success did not justify granting permission to appeal. Rosalind English has more detail here.
Stott, R (on the application of) v Secretary of State for Justice [2018] UKSC 59: The appellant was a prisoner who had been classed as ‘dangerous’ and accordingly given an Extended Determinate Sentence (EDS), under which he would become eligible for parole only after serving two-thirds of the appropriate custodial term. This was in various ways narrower than the ordinary parole eligibility of other categories of prisoner. The appellant claimed unlawful discrimination under Article 14 ECHR, combined with Article 5 (the right to liberty).
Conway, R (on the application of) v Secretary of State for Justice [2018] – read judgment
A man suffering from motor neurone disease has been refused permission to appeal to the Supreme Court in his bid to be allowed to choose when and how to die. He is now wheelchair bound and finds it increasingly difficult to breathe without the assistance of non-invasive mechanical ventilation (NIV). His legal campaign to win such a declaration, on his own behalf and others in a similar position, has met with defeat in the courts (see our previous posts on Conway here,here and here). As the Supreme Court noted in their short decision, Mr Conway
could bring about his own death in another way, by refusing consent to the continuation of his NIV. That is his absolute right at common law. Currently, he is not dependent on continuous NIV, so could survive for around at least one hour without it. But once he becomes dependent on continuous NIV, the evidence is that withdrawal would usually lead to his death within a few minutes, although it can take a few hours or in rare cases days.
But Mr Conway doesn’t see this as a solution to his difficulties, since he cannot predict how he will feel should ventilation be withdrawn, and whether he will experience the drowning sensation of not being able to breathe. Taking lethal medicine, he argued, would avoid all these problems.
In his view, which is shared by many, it is his life and he should have the right to choose to end it in the way which he considers most consistent with his human dignity.
In the latest in the protracted investigation into the death of Pearse Jordan, the Northern Ireland Court of Appeal has upheld the verdict of a Coroner who found himself unable to decide all the relevant facts – Re Theresa Jordan [2018] NICA 34. The case raises issues around the appropriate burden and standard of proof in inquests, particularly after a significant passage of time.
The Inquests
On 25 November 1992, Patrick Pearse Jordan was shot and killed at Falls Road, Belfast, by an officer of the Royal Ulster Constabulary, referred to in proceedings as “Sergeant A.” Mr Jordan was unarmed and was shot in the back. Three inquests have subsequently been held into his death. Continue reading →
Human trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.
The International Labour Organisation believes that at any one time at least 40.3 million people around the world are being coerced into a situation of exploitation or made to work against their will, often having been transported across borders. Such exploitation can take many different forms, but the most common include forced prostitution, forced labour or forced marriage.
Estimates vary hugely as to how many victims of trafficking or modern slavery there are in the UK, from 13,000 up to 136,000. What is clear is that it is a significant and constantly evolving problem, and one of the major drivers of organised crime. The UK has taken some very good steps to address the issue. However, two judgments earlier this year, and a news story this month, have drawn attention to the fact that the system put in place to combat human trafficking and modern slavery has some serious flaws in how it works in practice.
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Human trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.
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