11 December 2018
Katie Ayres is a barrister at 1 Chancery Lane.
By Judgment handed down on 29 November 2018 Lord Justice Davis and Mr Justice Ouseley dismissed the Claimants claims for Judicial Review of the Government’s decision to not embark on ‘Part 2’ of the Leveson Inquiry.
The decision provides clarification of the ‘legitimate expectation’ ground for Judicial Review and gives a warning to not overlook the fundamental principles of public law.
10 December 2018
In the latest episode of Law Pod UK Rosalind English talks to Catriona Murdoch of 1 Crown Office Row about Global Rights Compliance, an organisation offering a unique approach to atrocity crimes and other violations of international law. The Hague-based GRC works in partnership with The World Peace Foundation (‘WPF’) to combine expertise on conflict and food insecurity. Together they are identifying how international law may be used to advance the prevention, prohibition and accountability for mass starvation.
Law Pod UK is available for free download on Audiboom, Apple Podcasts, iTunes, The Podcast App or wherever you get your podcasts.
10 December 2018
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
This week saw a novel legal challenge which may have significant consequences for the Equality Act 2010. The case arose following the dismissal of Jordi Casamitjana by the League Against Cruel Sports on the grounds of gross misconduct. This was because he released information showing that the pension fund of employees was being invested in firms engaging in animal testing. However, Mr Casamitjana claims he was discriminated against by his former employer because he is vegan.
Mr Casamitjana alleges that he first raised his concerns about the pension investments internally. He says the charity responded by offering staff an alternative ‘ethical’ investment strategy with lower rates of return. Mr Casamitjana subsequently wrote to colleagues saying that their money was still being invested in non-ethical funds, and that there were other alternative investments available with good financial outcomes.
Mr Casamitjana argues that his sacking was due to the charity discriminating against his belief in ‘ethical veganism’. The League strongly deny the allegations and have stated Mr Casamitjana was dismissed purely because of gross misconduct.
The dispute means that an employment tribunal will have to decide whether veganism is a ‘belief’ which should be protected by the Equality Act 2010. It is thought to be the first time this issue has been raised. The ruling could have significant consequences for the provision of goods and services, as well as on employment rights more generally. However, others have warned that recognising too many views as protected characteristics would be excessively restrictive.
Continue reading →
3 December 2018
In Episode No 56, Suzanne Lambert and Emma-Louise Fenelon discuss the recent judgment of Whipple J in YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB)
In her analysis of the decision Suzanne refers to: the control mechanisms established by the House of Lords in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, the House of Lords decision in Page v Smith [1996] 1 AC 155 and the decision of the Court of Appeal in A Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588.
Continue reading →
3 December 2018
In the Courts:
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).
30 November 2018
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.
29 November 2018
As part of our continuing collaboration with Professor Catherine Barnard of Cambridge University, we now have her latest episode on the Political Declaration on the withdrawal deal: Episode 55 of Law Pod UK. Towards the end of her 15 minute interview with Boni Sones Catherine talks about the Wightman reference to the CJEU from the Scottish Court of Session asking whether Article 50 can be revoked, and if it can be revoked, can it be done unilaterally by the UK or only bilaterally with the EU’s agreement. Exceptionally, the entire banc of the EU justices have just heard this case which indicates just how important this issue is; judgment awaited.
Continue reading →
27 November 2018
Khan v MNX [2017] EWHC 2990 (QB) – read judgment.
The Court of Appeal has held that a mother who consults a doctor in order to avoid the birth of a child with one disability may not recover damages for the costs associated with a different disability.
The Facts
The respondent, M, was concerned that she may be a carrier of haemophilia and consulted her GP, who arranged blood tests. Those tests, however, could only detect whether she herself had haemophilia, and not whether she was a carrier. She then saw the appellant, another GP, who told her that the results of the tests were normal. This led her to believe, incorrectly, that any child she had would not have haemophilia. The appellant admitted that she had been negligent.
M went on to have a son, FGN, who has haemophilia. Had she known that she was a carrier before she became pregnant, she would have undergone foetal testing, which would have revealed the condition, and she would have had a termination. Therefore, but for the negligence, FGN would never have been born.
FGN has also developed autism, which is unrelated to his haemophilia.
The claim sought the costs attributable to the haemophilia and to the autism.
27 November 2018
Sapan Maini-Thompson is an LLM Candidate at University College London.
On 14th November 2018 the Divisional Court gave judgment in a claim against the Criminal Cases Review Commission (CCRC) in Regina (Anthony Davies) v The Criminal Cases Review Commission . This case was brought on behalf of a prisoner who contended that his conviction had become unsafe following the decision of the Supreme Court in R v Jogee [2016] UKSC 8 which recast the mens rea requirements in joint enterprise cases. The court dismissed the claim in a judgment which involved analysis of how the principles in Jogee are applied, and the circumstances in which the CCRC should re-open an old conviction. Jim Duffy of 1 Crown Office Row was the Junior Counsel for the Claimant and instructed by David McCorkle of Duncan Lewis Solicitors.
Continue reading →
26 November 2018
The Upper Tribunal decision in of C&C v Governing Body [2018] UKUT 269 (AAC) has provided important clarification to the scope of the Equality Act 2010 in an education context.
A 13-year-old boy, L, was excluded for physical violence at school. L suffered from autism, anxiety and Pathological Demand Avoidance; it was common ground that the episodes of violence were as a result of these conditions.
It was also common ground that, but for the effect of Reg. 4(1)(c) Equality Act 2010 (Disability) Regulations 2010 (‘the 2010 Regulations’), L would meet the definition of having a ‘disability’ found at section 6 of the Equality Act 2010 (‘EA 2010’), as he had physical or mental impairment which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
But section 6 of the EA 2010 must be read in conjunction with the 2010 Regulations. The effect of Reg.4(1)(c) of the 2010 Regulations is to carve out from the definition of ‘disability’ those ‘impairments’ which manifest themselves in:
(a) a tendency to set fires,
(b) a tendency to steal,
(c) a tendency to physical or sexual abuse of other persons,
(d) exhibitionism, and
(e) voyeurism.
In C&C the school argued that L’s violent behaviour amounted to ‘a tendency to physical…abuse of other persons’ for the purposes of the 2010 Regulations, thereby removing the protection from discrimination that he would otherwise be afforded by the EA 2010.
The Law
Previous cases had decided that behaviour which amounted to a ‘tendency to physical…abuse’ was not protected under the Equality Act 2010 in the case of children with behavioural difficulties.
However, C&C reversed this line of authority.
The First Tier Tribunal had found, in line with the established case law, that L did not fulfil the definition of ‘disability’ under section 6 EA 2010 by virtue of the operation of Reg. 4(1)(c).
On appeal, Tribunal Judge Rowley was tasked with deciding whether the current interpretation of Reg. 4(1)(c) of the 2010 Regulations was compatible with Article 14 read with Article 2 of Protocol 1 (A2P1).
26 November 2018
From Strasbourg to the Strand, this week saw a plethora of judgements delivered in cases with notably interesting facts. However, arguably the most widely reported legal news concerned two stories, neither involving judgements in the UK courts. The case of six-year-old girl sexually assaulted by other pupils at a primary school made headlines after a local authority, whilst not admitting liability, settled her claim following a round table meeting in March this year. The High Court has now approved this settlement to make it binding on the parties (a necessary move when one party is a child to prevent them seeking further damages when they attain a majority) in litigation which some consider may contribute to legal precedent. More on that here. Meanwhile, the case of Matthew Hedges, a British academic jailed for life in the UAE on spying charges widely considered unfounded, appears to be resolved. Reports this morning indicate Mr Hedges has been unconditionally pardoned and is likely to be released imminently. This case raised profound questions about the rule of law and reliability of the judiciary in a Middle East country considered one of the West’s closest and most reliable partners.
Continue reading →
23 November 2018
This week Law Pod UK, the podcast brought to you by the barristers at 1 Crown Office Row, surpassed 90 000 listens since our launch in May last year. Nobody could have predicted the runaway success of the podcast form a couple of years ago. Our short podcasts have proved enormously popular, not least because they provide updates on the latest legal developments with crisp discussion that absorbs the attention but lasts no longer than a short commute.
Rosalind English and Emma-Louise Fenelon present discussions with barristers, solicitors and academics on a wide range of topics including the recent Supreme Court decision in Darnley, human trafficking, clinical guidelines, and the impact of AI on the legal profession.
Intrigued? Subscribe to Law Pod UK via Apple Podcasts, iTunes, Audioboom or wherever you get your podcasts. And if you like what you hear, please remember to rate and review us. Your support is encouraging and we hope you can help us make 100,000 listens by Christmas.
Thank you to everyone who has listened and keep an eye out for the new episodes to be released shortly!
22 November 2018
The Scottish Government sets itself apart from its UK counterpart in its approach to protecting human rights. The SNP vocally opposed proposals to withdraw the UK from the ECHR and repeal the Human Rights Act. An expert group appointed by the First Minister Nicola Sturgeon will report this year with recommendations on how Scotland “can continue to lead by example in human rights”, and appears to be considering incorporating a range of rights from international human rights law into the Scottish legal system.
In environmental rights however, the lack of progress is conspicuous. As David Hart QC explained, the Aarhus Convention aims to protect the right to live in an environment adequate to health and wellbeing – the foundation on which other human rights are built. It recognises the rights of NGOs and members of the public to access information, participate in decision-making, and access justice. These rights encourage citizens to get involved in environmental decision-making. Article 9 requires that NGOs and members of the public must be able to challenge situations where their Convention rights are denied or national environmental laws are broken. Critically, access to justice must be “not prohibitively expensive”.
Yet environmental litigation (mainly judicial review) in Scotland is extortionate. Litigants face six figure bills if they lose. The Convention’s Meeting of the Parties and Compliance Committee (ACCC) have found Scotland to be non-compliant with the requirements of Article 9 (the latter has done so repeatedly). Instead of recognising this deficiency, recent Scottish Government consultation documents note Scotland’s “ongoing compliance” and disparage the Compliance Committee as “not a judicial body”.
2018 brings a new development. New protective expenses orders rules for environmental litigation in Scotland were created last week. This post examines these rules, and argues that they remain out of line with the Convention.
20 November 2018
In the recent judgement of MM (Malawi) & MK (Sri Lanka) v SSHD [2018] EWCA Civ 2482 the Court of Appeal declined to grant permission to appeal to the Supreme Court for consideration of whether the test under Article 3 for removal of foreign nationals in medical cases, as set out in Paposhvili v Belgium [2017] Imm AR 867 , was correctly interpreted by the Court of Appeal in AM (Zimbabwe) v SSHD [2018] EWCA Civ 64.
Background
The issue in this case was whether the removal of a foreign national from the UK would breach their rights under Article 3 not to be subject to inhumane or degrading treatment where they are in receipt of medical treatment in the UK which is not available in their home country.
In 1997 the European Court of Human Rights (ECtHR) determined in D v UK (Application no. 30240/96) that, as the applicant was in the advanced stages of AIDS to the extent that he was reliant upon palliative care in the UK and would receive no comfort or moral support in his home country, his removal would constitute a breach of Article 3. This was noted to be a ‘very exceptional’ case.
The current leading domestic authority is N v Secretary of State for the Home Department [2005] UKHL 31. N was also diagnosed with AIDS but owing to the availability of treatment in the UK she was expected to live for decades; however, if returned to Uganda, where such treatment was not available, she would die within one to two years. Lord Hope set out the test for ‘very exceptional’ as follows:
For the circumstances to be […] ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying …” [my emphasis]
Therefore, although N would die much faster in Uganda, as she would not be subject to ‘acute suffering’ whilst dying there was no breach of Article 3. This was held to be the case even though it was accepted that N’s life would be significantly shortened [see Lord Nicholls at para 15]. The issue was declared to be not whether her death would follow removal but whether “there is care available […] to enable [her] to meet that fate with dignity” [Baroness Hale, para. 69]. In N’s case it was considered that such care was available. The Grand Chamber of the ECtHR approved this reasoning in N v UK (Application no. 26565/05).
20 November 2018
Conor Monighan brings us the latest updates in human rights law
Max Hill QC. Credit: The Guardian
In the News:
Max Hill QC, the new Director of Public Prosecutions (‘DPP’), has said that rape victims’ mobile phones will no longer be seized “as a matter of course”.
His comments come in the wake of allegations that prosecutors are increasingly making demands to access victims’ personal data. The Association of Police and Crime Commissioners suggested that the CPS been pushing investigators to make more invasive searches, even if officers are satisfied that they have pursued all reasonable lines of inquiry. This may be part of an effort to improve conviction rates.
Big Brother Watch wrote to the Information Commissioner’s Office (ICO) last week arguing against this trend. The campaigning group said it was becoming ‘routine’ to download the contents of sexual offence victims’ phones, and that the information could legally be stored for 100 years. In response, the ICO is considering widening its investigation into the use of victims’ information. It also spoke out against accessing rape victims’ mobile phone data and personal records.
Max Hill QC says that he aims to boost public confidence in the CPS and would improve the disclosure of evidence in criminal trials. The organisation has been struggling under 25% budget cuts and revelations of recent disclosure failings.
Continue reading →
This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
| Commissioning Editor: | Jonathan Metzer |
|---|---|
| Editorial Team: |
Rosalind English Angus McCullough QC David Hart QC Martin Downs Jim Duffy |
Recent comments