Category: Case law
25 February 2018 by Conor Monighan
In the News:
Credit: Garry Knight, Flickr
Commissioner of Police of the Metropolis v DSD
The Supreme Court ruled that the police have a positive obligation to conduct an effective investigation into crimes involving serious violence to victims, in line with Article 3 of the ECHR. In this case the obligation had been breached.
The case concerned the police’s investigation into the ‘black cab rapist’, John Worboys. Two of his victims brought a claim for damages against the Commissioner of the Metropolitan Police Service (MPS), on the basis of an alleged failure of the police to conduct an effective investigation into Worbys’ crimes. The victims were awarded compensation in the first instance. The Court of Appeal dismissed the MPS’ appeal, and the case came before the Supreme Court.
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23 February 2018 by David Hart KC
R (ClientEarth No.3) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 21 February 2018, judgment here
DEFRA has been found wanting again, in its latest attempt to address nitrogen dioxide in air. This is the third time. Yet DEFRA’s own analysis suggests that some 23,500 people die every year because of this pollutant.
I have told the story in many posts before (see list at bottom), but the UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) since 2010. The Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”: Article 23.
We have now had 3 Air Quality Plans, the first produced in 2011 and quashed in 2015, and the second produced later in 2015, declared unlawful by Garnham J in November 2016.
The third, in this judgment, was dragged out of DEFRA in July 2017, after various attempts to delay things.
So why was it decided to be unlawful?
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11 February 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law.
Credit: Wiki Commons
In the News:
Robinson v Chief Constable of West Yorkshire
Covered by the Blog here
There is no general immunity for police officers investigating or preventing crime. In this case, Mrs Robinson suffered injuries when two police officers fell on top of her, along with a suspected drug dealer resisting arrest. The officers had foreseen Williams would attempt to escape but had not noticed Mrs Robinson (who was represented by 1 Crown Office Row’s academic consultant Duncan Fairgrieve).
The recorder found that, although the officers were negligent, Hill v Chief Constable of West Yorkshire [1989] gave them immunity from negligence claims. The Court of Appeal ruled the police officers owed no duty of care, and even if they did they had not broken it. It also found most claims against the police would fail the third stage of the Caparo test (i.e. it would not be fair, just and reasonable to impose a duty of care upon the police in these situations). The Court found Williams had caused the harm, not the police, so the issue was based on omission rather than a positive act. Finally, even if officers had owed the Appellant a duty of care, they had not breached it.
Mrs Robinson appealed successfully to the Supreme Court.
It held:
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14 January 2018 by David Hart KC
R (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA, Court of Justice of the European Union, opinion of Advocate-General Wathelet, 10 January 2018 – read here
The A-G has just invited the CJEU to conclude that an EU agreement with Morocco about fishing is invalid on international law grounds. His opinion rolls up deep issues about NGO standing, ability to rely on international law principles, justiciability, and standard of review, into one case. It also touches on deeply political, and foreign political, issues, and he is unapologetic about this. That, he concludes, is a judge’s job, both at EU and international court level – if the issues are indeed legal.
The opinion is complex and I summarise it in the simplest terms. But here goes.
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23 December 2017 by David Hart KC
Four Seasons Holdings v. Brownlie [2017] UKSC 80, 19 December 2017, read judgment
Professor Ian Brownlie Q.C., an eminent international lawyer, and members of his family were killed in a road accident in Egypt, when on their way to Al-Fayoum. His widow, also injured, had booked the driver through their hotel, the Four Seasons in Cairo.
The family wished to bring proceedings in the UK against the hotel in respect of the driver. However, the key defendant (Holdings) was incorporated in British Columbia, and the issue which got to the Supreme Court was the issue of jurisdiction.
The family said that there was a contract for the trip with Holdings, and further that Holdings were vicariously liable in tort for the negligence of the driver. Holdings had been less than transparent at earlier stages of the proceedings, but, after the Supreme Court required it to give a full account of itself, it emerged that it was as the name suggested – a non-trading holding company which had never operated the Cairo hotel, even though other companies in the group were involved with the hotel.
On that ground, Holdings’ appeal was allowed. The unanimous Court concluded that there was no claim in either contract or in tort. In simple terms, Holdings was nothing to do with the booking of the driver by the hotel.
But the lasting interest in the case lay in the question of whether you can establish qualifying “damage” in tort in the UK even if you are injured abroad, and on this the Court was split 3-2.
Let me set the scene for this, before telling you the result.
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20 December 2017 by David Hart KC
Dover District Council v. CPRE Kent [2017] UKSC 79, 6 December 2016, read judgment
The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover.
The interest is in the breadth of the decision – how far does it extend?
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3 September 2017 by Rosalind English
Clinical Genetics is a field of medicine concerned with the probability of an indvidual’s condition having an hereditary basis. The journal Medical Law International has just published an article about the scope of potential duties of care owed by specialists in this field to people with heritable diseases. The authors draw out the features of genomic medicine that open the door to new liabilities; a potential duty owed by clinicians to third party family members, and another legal relationship that may be drawn between researchers and patients.
Background
There is no legislation on the duties involved in genome sequencing in the United Kingdom, and, in the absence of this, any new legal duties on the part of professionals in clinical genomics need to be established within the common law of negligence. Civil lawyers are familiar with the standard framework for establishing whether a duty of care is owed, based on these three consecutive questions:
- Was the damage was reasonably foreseeable
- Was there was sufficient “proximity” between the claimant and the defendant and
- Would it be fair, just and reasonable to impose a duty: see Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618
These principles are neat enough as they are laid out but only take us as far as the facts of any particular case, particularly the Caparo test outlined in para (3).
This relatively new field of medical endeavour is unusual in that it is concerned with the management of a family rather than one individual. More generally, in the field of genomic medicine, there is a “close interaction between care and research”, resulting in “the real possibility” that genomics researchers will be found to owe a legal duty to disclose findings to participants.
So we have two new possible avenues of liability here; that of clinicians to third parties, and that of researchers to patients.
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20 July 2017 by David Hart KC
Khuja (formerly known as PNM) v. Times Newspapers [2017] UKSC 49, Supreme Court, read judgment
The outcome of this case is summed up in its title, an unsuccessful attempt to retain anonymity in press reporting. It is a stark instance of how someone involved in investigations into very serious offences cannot suppress any allegations which may have surfaced in open court, even though no prosecution was ever brought against them.
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16 May 2017 by David Hart KC
R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 27 April 2017, judgment here
Last November (here) the judge decided that the UK’s air pollution plans under EU and domestic laws were not good enough. The case has a long, and unedifying back-story of Government not doing what the law says it should do – see the depressing list of posts at the bottom of this post.
The pollutant was nitrogen dioxide, a product of vehicle exhaust fumes. And as the judge reminded us in this latest instalment, the Department for Transport’s own evidence suggests that 64 people are dying everyday as a result of this pollutant.
The particular issue might seem legally unpromising. Government wanted to delay the publication of its latest consultation proposal from 24 April 2017 (the date ordered by the judge last November) until after the Council elections on 4 May, and, then, once the general election had been called, until after 8 June 2017. It accepted that it had its report drafted, but did not want to release it.
But the only justification for the delay was Purdah.
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6 May 2017 by David Hart KC
R (o.t.a T) v. HM Senior Coroner for West Yorkshire [2017] EWCA 187 (Civ), 28 April 2017 – read judgment
A sad story of human frailty posed two difficult problems for the Coroner, and the Court of Appeal.
A 19-year old mother went into hospital, with a shoebox. In the shoebox was the 6-days dead body of her daughter. She told the hospital and the police that she had been raped, hence the shame about reporting the death. She had given birth in her bedroom at home, and she said that the baby had been cold when born.
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6 April 2017 by Fraser Simpson
SS (Congo) v Entry Clearance Officer, Nairobi, [2017] UKSC 10 – read judgment.
The Supreme Court has ruled that, in principle, the need for spouses or civil partners in the UK to have an annual minimum income of £18,600 in order to obtain entry clearance for their non-EEA spouse/civil partner to be compliant with the European Convention on Human Rights (“ECHR”). However, the Supreme Court stated that the relevant Immigration Rules relating to such Minimum Income Requirements (“MIR”) failed to adequately take account of the need to safeguard and promote the welfare of children when making an entry decision. Finally, the prohibition on taking into account prospective earnings of the foreign spouse or civil partner when applying the MIR was inconsistent with the evaluative exercise required under Article 8, ECHR.
by Fraser Simpson
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21 February 2017 by David Hart KC
R (o.t.a. Oakley) v. South Cambridgeshire District Council [2017] EWCA Civ 71, 15 February 2017, read judgment
There is, I am glad to say, an insistence these days in the Court of Appeal that the giving of proper reasons is a necessary part of what can be expected of a planning authority when it grants permission: see my post here for a case last year.
And the current case is another good example. The CA, reversing Jay J, decided that the planning authority had acted unlawfully in not giving reasons in this case.
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9 February 2017 by Fraser Simpson
Mucaj, Re Judicial Review, [2017] CSOH 17 – read judgment.
Asylum seeker’s claim that he cannot be returned to Belgium under the Dublin III Regulations due to non-compliance with time limits by authorities fails.
by Fraser Simpson
The petitioner in this case, Bahri Mucaj, was an Albanian that arrived in Belgium in November 2011. After unsuccessfully claiming asylum in Belgium, the petitioner entered the UK and sought asylum here in late December 2014. The petitioner then sent a “take back” request to Belgium under The Dublin III Regulations (“Dublin III” – available here) in order for the Belgian authorities to reconsider his original application. This request was accepted on 7 January 2015 by the Belgian authorities. Consequently, the Secretary of State refused to consider the petitioner’s asylum application due to the fact that there was the possibility to send the individual back to a “safe” country – Belgium. The petitioner then wrote to the Secretary of State alleging that sending him back to Belgium would result in violations of both Article 3 and 8 of the European Convention on Human Rights. This claim was based on the living conditions that they had endured whilst originally in Belgium and the likelihood that they would be subject to similar conditions on return. This claim was refused and removal directions were issued to return the petitioner and his family to Belgium. The petitioner subsequently challenged this removal decision.
As was her policy at the time, the Secretary of State cancelled her removal directions pending the court’s decision. At this point, in mid-2015, there were a number of similar Judicial Review requests concerning the return of asylum seekers to European countries under Dublin III and the potential violation of Article 3. Following the leading decision in AL v Advocate General for Scotland, [2015] CSOH 95, which found in favour of the respondents, the petitioner in the current proceedings made amendments to their arguments. Instead of pursuing substantive challenges to the removal decision based on human rights grounds, the petitioner argued that the authorities had not complied with the time limits for return in Dublin III.
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26 January 2017 by Jim Duffy
In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court judgment as anything other than a comprehensive defeat for the government.
Yet, as my colleague Dominic Ruck Keene’s post alluded to, the ultimate political ramifications of Miller would have made the Article 50 process appreciably more turgid had the Justices accepted the various arguments relating to devolution.
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26 January 2017 by David Hart KC
In November 2016, the Government responded in rather disappointing terms (here) to a consultation about amending its costs rules in civil cases to reflect the requirements of the Aarhus Convention.
Article 9 of this Convention says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive“. Aarhus starters may want to have a look at my bluffers guide to Aarhus – here.
First, the limited bit of good news in the governmental response.
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