Category: In the news

“No precedent? Then set one!” – Nicklinson right to die case

20 August 2012 by Rosalind English

Updated – Tony Nicklinson, one of the two claimants in this case, died on 22 August 2012.

This is Richard Dawkin’s battle cry in response to the recent High Court rejection of the challenge by locked-in sufferers to the murder and manslaughter laws in this country that have condemned them to an unknowable future of suffering.

As explained in my previous posts, Nicklinson, who suffered a catastrophic stroke in 2005, argued for an extension to the common law defence of ‘necessity’ for murder because the alternative – forcing him to stay alive – is worse. His lawyers also submitted that the government is in breach of his Article 8 right to ‘privacy, dignity and autonomy’, a right he cannot exercise independently because of severe disability.

The court rejected the “bold” submission, stating that there was no precedent anywhere in the world and such socially controversial changes were only for Parliament.

But the courts can’t keep ducking away from the problem, because Parliament is never going to address this issue. Why? Because, as Dawkins points out, once again, religion turns out to be the major culprit. Every attempt in the House of Lords “to do something about the right to seek professional (or even amateur) assistance in dying when you are too incapacitated to kill yourself” has crashed and burned, despite huge public support for reform in this area.
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A tinge of green in our Bill of Rights?

17 August 2012 by David Hart KC

Amidst the root and branch opposition to socio-economic rights from some quarters, the idea that the Bill of Rights might contain an environmental right seems to have got lost in the smoke of this rather unedifying battle. The July 2012 Consultation on a Bill of Rights summarises the rival contentions well – see below.

I am ducking well away from the underlying question – should there be a Bill of Rights at all? – but support the proposition that, if there is to be such a Bill, it should contain some provision about the environment. Answers on a postcard to the Commission by 30 September, please, whether you agree or disagree with me, but in the interim, here is my penn’orth.

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“Locked-in” sufferer’s challenge to ban on voluntary euthanasia fails in the high court

16 August 2012 by Rosalind English

The Queen(on the application of Tony Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin) – read judgment

Lord Justice Toulson, sitting with Mrs Justice Royce and Mrs Justice Macur, has  handed down judgment in the case of Tony Nicklinson and that of another “locked-in” syndrome sufferer, “Martin”. On all the issues, they have deferred to parliament to take the necessary steps to address the problems created by the current law of murder and assisted suicide.

Philip Havers QC  of 1 Crown Office represented Martin in this case. 

Tony Nicklinson sought a declaration of immunity from prosecution for a doctor who would give him a fatal dose of painkillers to end his life in Britain. He also sought a declaration that the current law is incompatible with his right to respect for private life under article 8, contrary to s1 and 6 of the Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide.

Martin’s claim was slightly different as his wife does not want to do anything which will hasten his death. He therefore asked for permission for volunteers to be able to help him get to the Dignitas clinic in Switzerland (under recent guidelines from the Director of Public Prosecutions only family members or close friends who are motivated by compassion are unlikely to be prosecuted for assisting a suicide). In the alternative he sought a declaration that section 2 of the Suicide Act is incompatible with the right to autonomy and private life under Article 8 of the European Convention. 
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Let the judges blog

15 August 2012 by Adam Wagner

The legal blogosphere has been aflame this week with the news, first published on a magistrate’s blog, that the Senior Presiding Judge has sent new guidance to judges banning them from blogging in their judicial capacity. The SPJ has also threatened disciplinary action unless they remove existing content with breaches the new rules.

The key section of the purported guidance is this:

Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.

The guidance applies to those who blog anonymously because “it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered“.

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A coach and Aarhus through the planning system? Third party rights under scrutiny

15 August 2012 by David Hart KC

The Geneva-based Aarhus Compliance Committee is considering a wide-ranging pair of challenges to the planning system claiming that it does not comply with the Aarhus Convention on Environmental Matters. The Committee (ACC) heard oral submissions on 27 June 2012, and on 12 August received what should be the last of the written submissions of the parties.  A decision may emerge before the end of the year, but there is so much interesting material in the papers before the Committee (for which see this and this link) which is worth having a look at.

The challenges raise a whole host of issues – the key ones are:

(i) not all planning committees allow objectors to address them orally before making a planning decision – when they do, they get a bare 3 minutes to say their piece;

(ii) an objector cannot appeal the grant of planning permission; all he can do is seek judicial review if the planning authority err in law, with the potential costs consequences which that involves; compare the developer who has a full appeal on fact and law;

(iii) an objector cannot enforce planning conditions attached to a grant; all he can do is challenge the local authority if it refuses to enforce, again on a point of law;

(iv) the UK does not comply with Article 6 of the Convention in that not all projects likely to have an effect on the environment are properly challengeable;

(v) the UK does not comply with Article 7 of the Convention in respect of public participation in all plans which may relate to the environment.

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Should we be using ‘special’ offences to prosecute crimes against disabled people? – Lucy Series

14 August 2012 by Lucy Series

Eleven Winterbourne View staff have pleaded guilty to 38 charges of ill-treatment and neglect of a mental health patient under s127 Mental Health Act 1983 (MHA).  In this post I want to consider why we need ‘special’ offences like s127 MHA and also s44 Mental Capacity Act 2005 (MCA), rather than prosecuting crimes in care settings using more ‘mainstream’ offences. 

The UN Convention on the Rights of Persons with Disabilities (CRPD), with articles emphasising access to justice (Article 13) and equal recognition before the law (Article 12) encourages us to think about how we can ensure disabled people have effective access to the law that protects us all before we develop parallel ‘special’ systems of rights protection (see, for example, Inclusion Europe, European Disability Forum).  So my question is: why are we using ‘special’ offences of ill-treatment and neglect to prosecute crimes that occur in care, rather than the ordinary ‘offences against the person’ those outside of care rely upon?

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Defining “dignity” – nailing jelly to the wall?

8 August 2012 by Rosalind English

In his recent book Harvard philosopher Michael Rosen poses the question: what is dignity, exactly, and do we know it when we see it?  We are all familiar with the mantra that all humans are endowed with equal dignity, but do we really understand what it means?  Since it is a formulation that is increasingly advanced in justifying universal human rights, we should try to get to grips with it, rather than reversing into circularities such as defining it as an intrinsic quality from birth. What makes it intrinsic? And at what point is it acquired? And why do we owe the dead a duty of dignity when they have no rationality and make no choices, autonomous or otherwise? 
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Obsession with World War II distorts understanding of human rights

4 August 2012 by Rosalind English

A fascinating article by SOAS EU law specialist  Dr Gunner Beck lays bare some of the important problems created by British hostility to Germany, which, by contrast to the profound social and economic changes that have taken place in both countries in the seven decades since WWII, appears “timeless and unchanging.”

In a wide ranging analysis of the abiding obsession with Nazi Germany in the British media and elsewhere, as well as the “strange sado-masochism” of Germany itself, Gunner Beck demonstrates how effectively this prejudice creates and fosters confusion about the current crisis in the Eurozone and the reaction of some of its members to German demands for closer scrutiny. He asks us to question why German history

is still largely reduced to the twelve years from 1933 to 1945, and why it still seems impossible in Britain to criticise any aspect of German economic or foreign policy, especially on EU matters, without some kind of Nazi connotation or similar historical insinuation lurking somewhere in the background… Why has nearly a lifetime of peaceful and liberal-democratic development in Germany done so little to put the Third Reich into some kind of historical perspective?

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Judge decides that Jewish girl could be baptised

4 August 2012 by David Hart KC

A Mother v. A Father HHJ Platt, Romford County Court, 11 May 2012, read judgment

I recently dared to enter religious territory in a post about religious no-go zones declared by the courts – they should not pronounce on the intricacies of Sikh succession because it raised doctrinal issues which the courts should not decide. Compare and contrast this family law case.

Judges have to get involved in disputes on divorce, of which the current case is an exquisitely difficult example. Its facts are very simple. C was 10. Her parents and grandparents are Jewish. Her father is a Christian convert, and C wanted to be baptised. Her mother did not want this. She said father had brainwashed C, and it was premature. Mother went to court to stop any baptism proceeding until C was 16. The Court could not simply wash its hands of the case; that would encourage  self-help taken by one or other parent, to the lasting resentment of the other.

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Twitter users “free to speak not what they ought to say, but what they feel”

27 July 2012 by Isabel McArdle

Paul Chambers v DPP [2012] EWHC 2157 – Read judgment

The famous ‘Twitter joke’ conviction of Paul Chambers has been overturned on appeal, bringing welcome clarity to what is and what is not an offence of this type. On discovering a week before he was due to take a flight that the airport was closed due to adverse weather conditions, he tweeted that “I am blowing the airport sky high!!” unless the situation was resolved by the time of his flight. He was convicted of sending a message of a “menacing character”, but has had the conviction quashed on appeal, on the basis that, as it was a joke, it was not of a menacing character.

“I had decided to resort to terrorism”

Mr Chambers was intending to fly out of Robin Hood Airport on 15 January 2010 to meet a romantic partner he met on Twitter. On 6 January, via Twitter, he became aware that severe weather was causing problems at the airport, and engaged in a conversation on Twitter where he made the following comments:

“…I was thinking that if it does [close due to adverse weather] then I had
decided to resort to terrorism”

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The right not to hold any belief is fundamental, says Supreme Court

25 July 2012 by Rosalind English

RT (Zimbabwe) and others (Respondents) v Secretary of State for the Home Department [2012] UKSC 38 – read judgment

It is no answer to a refugee claim to say that the individual concerned should avoid persecution by lying and feigning loyalty to a regime which he does not support.

So the Supreme Court has ruled today, considering the relevance to political beliefs of the so-called “HJ(Iran) principle” which was formulated in a case where it was held that it was no answer to an asylum claim by a gay man that he should conceal his sexual identity in order to avoid the persecution that would follow if he did not do so.
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Outlawing God? The limits of religious freedom

25 July 2012 by Rachel Marcus

Dinah Rose QC

Monday night’s fascinating seminar on Article 9, “Outlawing God”, saw Dinah Rose QC, John Bowers QC, Dr Evan Harris (Liberal Democrat former MP) and Rabbi Michael Laitner (solicitor and Orthodox rabbi) square off over the relationship of the courts to religious belief and believers, refereed (and sometimes stoked) by Joshua Rozenberg in the chair. The seminar, which raised almost £2,000 for legal advice clinics at the Hebrew University, can be listened to here.

There was a clear division in the room: between the lawyers, who felt that the courts in both the UK and Strasbourg afforded less robust protection to Article 9 rights than to the other rights in the Convention; and Dr Harris, who could not accept that a religious belief was any more worthy of protection than any political belief.

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When human rights hit the private law of damages for death

24 July 2012 by David Hart KC

Swift v. Secretary of State for Justice [2012] EWHC 2000 (QB) Eady J, read judgment

This decision involves the intersection of Articles 8 (family) and 14 (discrimination) of the ECHR with the law governing who can recover damages for the death of a relative. This law is the Fatal Accidents Act 1976 (for the text see [10] of the judgment – embarrassingly, the one freely available on the internet is out of date). One does not to think for very long before realising that the FAA is underpinned by an idea that one ought to respect the rights of the family, and to pay the family when one has negligently caused the death of a family member. But like all such laws, there is the problem of where to stop – where does the family stop for these purposes?

Ms Swift had been living with Mr Winters for 6 months when he was killed at work. She was pregnant with their child. Under FAA rules, her child had a claim for financial dependency against his father’s employer – what he expected to derive from his father had his father lived – even though he was not born at the date of his father’s death. Indeed, her son recovered £105,000. But, says the FAA, Ms Swift does not have a claim. s.1(3) requires an unmarried partner to have been living with the deceased for 2 years before his death before they can become a “dependant”, and no amount of re-writing via  s.3 of the Human Rights Act  (to make the FAA  rights-compliant “so far as possible”) can make “2 years” read as “6 months” . Had she qualified as a dependant, she would have had a claim for about £400,000.

So Ms Swift’s claim was against the Secretary of State for a declaration that the FAA was incompatible with her Article 8 and 14 rights.

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Alien poster campaign’s anti-religious message

22 July 2012 by Rosalind English

Updated | Mouvement Raëlien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012) – read judgment

This case concerned the Swiss authorities’ refusal to allow an association to put up posters featuring extraterrestrials and a flying saucer on the ground that it engaged in activities that were considered immoral.

The association complained it had suffered a violation of its right to freedom of expression. The Grand Chamber did not agree, ruling that the refusal had met a “pressing social need” and that the authorities had not overstepped the broad margin of appreciation given to them in view of the non-political dimension of the poster campaign.

At first blush there is nothing remarkable about this ruling. But it was a narrow majority (nine votes to eight) and a brief reading of the dissenting opinions gives pause for thought: does the slightly loony nature of a message justify its suppression? Lurking behind the authorities’ refusal to allow the association’s advertising campaign is a sense of disapproval vis a vis their anti-Christian message;  one of the campaigns the association wished to conduct featured a poster stating “God does not exist”, and on another, below the association’s website, ran the message “Science at last replaces religion”.
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Religious no-go area for the courts with their “costly crudities”

22 July 2012 by David Hart KC

Khaira v. Shergill [2012] EWCA Civ 893 read judgment

We have become used to the courts getting involved, more or less willingly, in religious issues, not least where religious freedoms conflict with legal rules which are said to be inconsistent with the exercise of those freedoms. But as Adam Wagner pointed out, in an earlier round of this litigation concerning two Sikh places of worship (Gurdwaras), the courts have developed rules stopping themselves from deciding certain cases, not least because the courts recognise they don’t know what they are doing once they get themselves immersed in issues of religious doctrine.

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