Category: Case summaries
22 March 2013 by Rosalind English
R (on the application of) Lord Carlile of Berriew and others v Secretary of State for the Home Department 20 March 2013 [2013] EWCA Civ 199 – read judgment
Last year the Divisional Court upheld the Home Secretary’s decision to prevent a dissident Iranian politician coming to the United Kingdom to address the Palace of Westminster: see that decision here and my post discussing the “Politics of Fear” here.
In this appeal, the parliamentarians contended that the Divisional Court had failed to consider the proportionality of the exclusion decision with sufficient scrutiny, and, by giving precedence to the possibility of unlawful actions by the Iranian regime, had given inadequate weight to the rule of law. It was perverse, they said, to justify the exclusion decisions by reference to risks to local staff and British government property in Tehran. Furthermore they argued that there had been unfairness in failing to consult the Parliamentary appellants.
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20 March 2013 by Rosalind English
Cancer Voices Australia v Myriad Inc 13 February 2013 – read judgment
Another battle in the war against gene patenting has been lost, this time in Australia.
The US litigation is still ongoing, with the US Court of Appeals for the Federal Circuit upholding Myriad’s patents on DNA sequenced in the laboratory: see my post on that judgment. On 30 November 2012, the US Supreme Court announced that it would hear an appeal in the Myriad case. The US law in relation to the patentability is therefore not likely to be settled until the Supreme Court reaches it own decision on the issue.
This Federal Court ruling in Australia has now endorsed the government’s rejection of calls for an outright ban on the patenting of genes by ruling that isolated nucleic acid (including isolated DNA and RNA) is patentable.
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14 March 2013 by Rosalind English
Eon v France, no. 26118/10 14 March 2013- read judgment (in French only)
The applicant, Hervé Eon, is a French national, a socialist and anti-GM activist living Laval (France). The case concerned his conviction for insulting President Sarkozy.
During a visit by the President to the département of Mayenne on 28 August 2008, Mr Eon had waved a placard reading “Casse toi pov’con” (“Get lost, you sad prick”), a phrase uttered by the President himself several months previously when a farmer had refused to shake his hand at the International Agricultural Show. The utterance was widely disseminated in the media and on the internet, attaining the status of a slogan.
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12 March 2013 by Rosalind English
R (on the application of A) v the Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) – read judgment
This was an application for judicial review, and a claim under the Human Rights Act 1998, in respect of the defendant’s decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate dated 12th October 2012.
Background
In August 2012, the defendant received a request from the Criminal Records Bureau for an enhanced check to be made in respect of the Claimant concerning her proposed employment by Nightingales 24 7 as a registered nurse. The information related to the alleged mistreatment of several elderly and vulnerable adults resident in the care home in which [A] worked as a Registered General Nurse. The allegations were made by the residents and the health care workers in the charge of A, a registered nurse who qualified in Nigeria. She claimed that these allegations had been made maliciously because the health care assistants resented the way in which she managed them. She also claimed that some of the allegations were motivated by racism.
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9 March 2013 by Rosalind English
Meiklejohn v St George’s Healthcare Trust [2013] EWHC 469 (QB) – read judgment
Richard Booth of 1 Crown Office Row acted for the claimant in this case. He is not the author of this post.
There is no doubt that medical diagnosis and therapy are struggling to keep pace with the genetic information pouring out of the laboratories and sequencing centres. And the issue of medical liability is being stretched on the rack between conventional treatment and the potential for personalised therapy. Treatment of disease often turns out to be different, depending on which gene mutation has triggered the disorder. However fine tuned the diagnosis, it may turn out to be profoundly wrong in the light of subsequent discoveries.
This is perhaps an oversimplified characterisation of what happened in this case, but it exemplifies the difficulties facing clinicians and the courts where things go wrong, against the backdrop of this fast-moving field of scientific endeavour.
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6 March 2013 by Rosalind English
Tesla Motors Ltd and another v British Broadcasting Corporation [2013] EWCA Civ 152 – read judgment
The Court of Appeal has refused an appeal against the strike out of a libel claim against the BBC in relation to a review of an electric sports car by the “Top Gear” programme. The judge below had been correct in concluding that there was no sufficient prospect of the manufacturer recovering a substantial sum of damages such as to justify continuing the case to trial.
The manufactures of an electric sports car made two of their “Roadsters” available to BBC’s “Top Gear” programme for review. The show’s tests were designed to push the cars to the limits of their performance in terms of acceleration, straight line speed, cornering and handling. One of the cars was driven by the presenter of the show, Jeremy Clarkson, who was filmed driving it round the test track and commenting on his experience.
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20 February 2013 by Rosalind English
Heafield v Times Newspaper Ltd (Religion or Belief Discrimination) [2013] UKEAT 1305_12_1701 (17 January 2013) – read judgment
The Employment Appeal Tribunal (EAT) has found that the use of bad language was evidently merely an expression of bad temper and not intended to express hostility to the Pope or Catholicism and that it did not constitute harassment within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.
Background
The Appellant, a casual sub-editor on the Times Newspaper, was a Roman Catholic. He was working at the Times during the visit to the United Kingdom of the Pope in 2010. During March the Times was preparing a story about the Pope relating to allegations that he had protected a paedophile priest. There was some delay in producing the story, and one of the editors in the newsroom, a Mr Wilson, shouted across to the senior production executives “can anyone tell what’s happening to the fucking Pope?”. When there was no response he repeated the question more loudly. The Appellant was upset and offended what he heard. He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the Employment Tribunal for harassment and victimisation on the grounds of his religious belief.
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18 February 2013 by Richard Mumford
RCW v A Local Authority [2013] EWHC 235 (Fam) (12 February 2013) – Read judgment
This case, described by Cobb J as an “unusual and troubling” case, concerns a 1 year old girl “SB” and a woman “RCW”. SB was born prematurely, at 27 weeks, weighing just 1 kg; almost immediately she was abandoned by her natural mother.
She spent many months in the Special Care Baby Unit. In October 2012 SB was matched with RCW, a single woman who worked as a project manager for the NHS. In January 2013 things took an “unexpected and wretched turn” in the form of RCW’s diagnosis with a brain tumour. Hurriedly, RCW made arrangements with a cohort of friends to care for SB while RCW underwent surgery to remove the tumour which was situated near the optic nerve. The operation, whilst successful in removing the tumour, left RCW without sight; it is not known whether the lack of sight is temporary or will be permanent.
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17 February 2013 by Rosalind English
Tamiz v Google Inc [2013] EWCA Civ 68 – read judgment
The Court of Appeal has ruled that in principle, an internet service provider that allowed defamatory material to remain on a blog hosted on its platform after it had been notified of a complaint might be a “publisher” of this material, although in this case the probable damage to the complainant’s reputation over a short period was so trivial that libel proceedings could not be justified.
This interesting case suggests there may be an opening for liability of Google for defamation, if certain steps have been taken to fix them with knowledge of the offending statement. Mr Tamiz, who claimed to have been defamed by comments posted on the “London Muslim Blog” between 28 and 30 April 2011, appealed a decision in the court below to decline jurisdiction in his claim against the respondent corporation and to set aside an order for service of proceedings on Google out of the jurisdiction.
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15 February 2013 by Rosalind English
Moore v British Waterways Board [2013] EWCA Civ 73 – read judgment
A boat owner has won his appeal against the British Waterways Board preventing him from mooring his boats alongside his land on a tidal stretch of the Grand Canal. Although he had no common law right to permanently moor the boats, he had committed no actionable wrong in doing so, and they were therefore not moored “without lawful authority” within the meaning of the British Waterways Act 1983. This judgment is an interesting and important endorsement of the principle in English law that everything is permitted except what is expressly forbidden.
This key “rule of law” principle applies as much to the BWB as it does to the police and other law enforcement agencies.
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15 February 2013 by Amy Mannion
BETTERIDGE v. THE UNITED KINGDOM – 1497/10 – HEJUD [2013] ECHR 97 – Read judgment
On 29 January the Chamber of the European Court of Human Rights held that convicted rapist Samuel Betteridge’s Article 5(4) rights had been breached due to delays in his cases being considered by the Parole Board, and awarded him damages for his ‘frustration’. The media furore, at varying degrees of accuracy, here and here.
The issue, by the time the matter reached the ECtHR, was whether the High Court (and the Government’s) “acknowledgment” of that Mr Betteridge’s Article 5(4) rights had been violated was sufficient redress. In short, the ECtHR held that it wasn’t, particularly in circumstances where the systemic delays on the Parole Board Review System were caused by the Government’s failure to recognize and plan for the full effects of the IPP sentence (brought into force in the Criminal Justice Act 2003). The ECtHR accepted that putting Mr Betteridge to the front of the Parole Board queue wasn’t the answer: that would simply jump him ahead of those who hadn’t sought judicial review. However, damages could meet the ‘frustration’ he had been caused.
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13 February 2013 by Rosalind English
Reilly & Anor, R (On the Application of) [2013] EWHC Civ 66 – read judgment
Adam Wagner has also commented on this case in The Times (£) as well as on Newsnight (from the start)
The Court of Appeal has ruled that regulations under the Jobseekers Act 1995 were unlawful as not meeting the requirements of that statute.
This was an appeal against a decision by Foskett J that the regulations were lawful. The two appellants were unemployed and claiming the Jobseekers’s Allowance. After refusing to participate in schemes under the Regulations in which they were required to work for no pay ( the Sector-Based Work Academy in Miss Reilly’s case and the Community Action Programme (CAP) in Mr Wilson’s), they were told that they risked losing their allowance.
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11 February 2013 by Rosalind English
Ali Hussein v Secretary of State for Defence [2013] EWHC 95 (Admin) – read judgment
Collins J has dismissed a claim that the MOD’s policy of allowing interrogators to shout at a captured person in order to obtain information is unlawfully oppressive. Not only did the complaint fail but it was denounced as “misconceived” and one which should never have been pursued.
Background
British armed services have two policies for questioning captured persons (CPERS) who are believed to possess valuable information which may protect the lives of other members of the forces or civilians, for example the location of roadside bombs.
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8 February 2013 by Rosalind English
Sandiford, R(on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2013] 168 (Admin) – read judgment
In this highly publicised case, the Administrative Court has come up with some firm criteria for the scope of the Convention’s protective reach for UK citizens abroad. The judgment is also something of a body blow for those who are looking to the EU Charter of Fundamental Rights and Freedoms for a wider human rights umbrella.
Lindsay Sandiford, the 56 year old claimant, was arrested for drug smuggling in Indonesia and sentenced to death. She issued judicial review proceedings seeking an order requiring the FCO to provide and fund an “adequate lawyer” on the basis that she had not had proper representation in Indonesia. The broad basis of this claim was that the UK government should back up its opposition to the death penalty by putting its money where its mouth is.
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7 February 2013 by David Hart KC
Bank Saderat Iran v Council of the European Union, EU General Court, 5 February 2013 read judgement
Last week I posted on the Bank Mellat case where an Iranian Bank succeeded in persuading the General Court to unfreeze its assets from orders made by EU institutions. The Bank Saderat case is virtually identical, and annulment was duly granted by the General Court. But it is troubling that the EU Council should go so wrong in wielding its draconian powers more than once. It does rather support the suspicions of the Bank (common to this and the Bank Mellat case) that pressure was brought to bear on the Council ultimately emanating from the US – hence the Wikileaks cables again – such that the EU did not robustly analyse the assertions made to them before making the orders. Basic errors were made again, and, as will emerge, the EU had no evidence for much of what it said.
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R (on the application of) Lord Carlile of Berriew and others v Secretary of State for the Home Department 20 March 2013 [2013] EWCA Civ 199 – read judgment
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