Category: BLOG POSTS
16 February 2015 by David Hart KC
A fascinating riff has been playing around the London Review of Books since Stephen Sedley (erstwhile Sedley LJ) reviewed a biography of the 18th century judge Lord Mansfield – here – part 3, but the excellent letters of response are open access.
Mansfield is perhaps best known by commercial lawyers for injecting into the hitherto archaic English commercial law some element of rationality. But he also ended up trying cases involving the ownership of slaves, and had therefore to decide how ownership fitted in with things like habeas corpus.
But first a bit of historical background about our man, and some indications of the differing times in which he lived – much of it thanks to Sedley’s review.
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16 February 2015 by Guest Contributor
It has long been recognised that enabling healthcare professionals to speak up about concerns at work is a key element of the promotion of patient safety. The Final Report of the Freedom to Speak Up review of whistleblowing processes in the NHS was published on 11 February 2015.
Sir Robert Francis recommends the implementation of twenty “Principles” and “Actions” by organisations which provide NHS healthcare and by professional and systems regulators. These measures are to address “an urgent need for system wide action,” in spite of some positive developments in the handling of whistleblowing processes since the February 2013 report of the public inquiry into the failings at the Mid Staffordshire NHS Foundation Trust.
The Principles and Actions appear under five “overarching themes” which are addressed at chapters 5-9 of the 222 page report, each chapter describing the Principles that should be followed to bring about the change required, and the Actions which follow from each. Annex A to the report is a summary of good practice which cross refers to the Principles.
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16 February 2015 by Guest Contributor
Liberty & Ors v GCHQ [2015] UKIPTrib 13_77-H (6 February 2015) – read judgment
Despite being hailed as an ‘historic victory in the age-old battle for the right to privacy and free expression’, closer examination of a recent ruling by the Investigatory Powers Tribunal (‘IPT’) reveals it to have been a hollow victory.
The case arose from the Snowden leaks, which unveiled a vast communications interception program led by the US National Security Agency (‘NSA’). Intercepted communications can include the content of emails as well as ‘metadata’, and can extend to purely internal communications as well as communications with a US connection. For example, an email exchange between Leeds and London may be liable to interception by the NSA simply because it happens to be routed through a US server at some stage along the line. The Regulation of Investigatory Powers Act 2000 (‘RIPA’) establishes a framework for interception of communications by UK authorities, but of course those provisions don’t apply to interceptions by foreign state authorities in their own territory. Once intercepted by the NSA, mutual intelligence sharing arrangements can lead the same Leeds-London email to be handed over to the UK authorities, notwithstanding that the UK authorities would have needed a RIPA warrant had they wished to conduct the interception themselves.
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15 February 2015 by Rosalind English
Geller and another, R (on the application of) v The Secretary of State for the Home Department [2015] EWCA Civ – read judgment
This short case involves the old dilemma of public order law: whether it is right to shut down speech when the speaker himself does not intend to incite violence, but whose presence it is said may lead third parties to commit violence. Indeed the facts of this particular case go further than that , because the applicants had no plans to make any public address during their proposed visit to Britain. It was their presence alone which was feared would inflame “community tensions”.
The applicants were two well-known US writers whose critical views of Islam led to them being prevented from entering the country in May 2013, to speak at a rally in the aftermath of the terrorist murder of Drummer Lee Rigby. An exclusion order was issued against them on grounds of public order, of which they sought judicial review. This was their appeal against the Immigration Tribunal’s refusal to allow them to proceed with the judicial review claim.
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15 February 2015 by Guest Contributor
Benkharbouche & Anor v Embassy of the Republic of Sudan [2015] EWCA Civ 33, 5th February 2015 – read judgment
This judgment concerned the conjoined appeals of Ms. Benkharbouche and Ms. Janah which arose from employment law claims brought against, respectively, the Sudanese and Libyan embassies. Certain of their claims, such as those for unfair dismissal, were founded on domestic law. Others, such as those under the Working Time Regulations 1998, fell within the scope of EU law. All were met with pleas of state immunity under the State Immunity Act 1978.
The Court of Appeal’s judgment provides a neat illustration of the relative remedial potency, on the one hand of human rights claims based on the European Convention on Human Rights by way of the Human Rights Act 1998, and on the other, those based on the EU Charter of Fundamental Rights via the doctrine of ‘horizontal direct effect’.
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11 February 2015 by David Hart KC
Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: reference by Counsel General for Wales [2015] UKSC 3, 9 February 2015 – read judgment here
Sounds like a rather abstruse case, but the Supreme Court has had some important things to say about how the courts should approach an argument that Article 1 of Protocol 1 to ECHR (the right to peaceful enjoyment of possessions) is breached by a legislative decision. The clash is always between public benefit and private impairment, and this is a good example.
The Welsh Bill in issue seeks to fix those responsible for compensating asbestos victims (say, employers) with a liability to pay the costs incurred by the Welsh NHS in treating those victims. It also places the liability to make such payments on the insurers of those employers.
In short, the Supreme Court found the Bill to be in breach of A1P1, as well as lying outside the legislative competence of the Welsh Assembly. Let’s see how they got there, and compare the conclusion with the failed A1P1 challenge brought in the AXA case (see [2011] UKSC 46, and my post here) concerning Scottish legislative changes about respiratory disease.
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11 February 2015 by Guest Contributor
X & Anor v Z (Children) & Anor [2015] EWCA Civ 34 – read judgment
The Court of Appeal has ruled that it would not be lawful for DNA originally collected by the police to be used by a local authority for the purposes of a paternity test.
Factual and legal background
X’s wife had been found murdered. The police took DNA from the crime scene. Some of the DNA belonged to X’s wife and some was found to be X’s. X was tried and convicted of his wife’s murder.
X’s wife had young children and they were taken into the care of the local authority. During the care proceedings X asserted that he was the biological father of the children and said he wanted to have contact with them. He refused to take a DNA test to prove his alleged paternity. The local authority asked the police to make the DNA from the crime scene available so that it could be used in a paternity test. The police, with the support of the Home Secretary, refused on the grounds that they did not believe that it would be lawful to do so.
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9 February 2015 by Rosalind English
Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII) 6 February 2015 – read judgment
The Supreme Court of Canada has upheld a challenge to the constitutionality of the prohibition on assisted dying, saying that since they last ruled on this issue in the 1993 case of Rodriguez (where a “slim majority” upheld the prohibition), there had been a change in the circumstances which “fundamentally shifted the parameters” of this debate.
The Court issued a declaration of invalidity relating to those provisions in the Canadian criminal code that prohibit physician assisted dying for competent adults who seek such assistance as a result of a “grievous and irremediable” medical condition that causes “endurable and intolerable” suffering. These laws should be struck down as depriving those adults of their right to life, liberty and security of the person under Section 7 of the Canadian Charter of Rights (The Constitution Act 1982)
Importantly, the court recognised what has long been proposed by campaigners on both sides of the Atlantic, that the prohibition deprives some individuals of life, as it has the effect of forcing people to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.
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8 February 2015 by David Hart KC
Sebry v Companies House and The Registrar of Companies [2015] EWHC 115 (QB) – read judgment
Paul Rees QC and Neil Sheldon of 1 Crown Office Row represented Companies House in this case. Neither has had anything to do with the writing of this post.
Cases about whether someone owes a duty of care in tort can be surprisingly difficult to decide. Kate Beattie has just posted on the Michael case here, where no duty was held to arise, despite (it appears) the police control room being told by the doomed Ms Michael that her ex-boyfriend had just told her that he was just about to “fucking kill you”. He was as good as his word, within 20 minutes, and the family now sues the police. How much more direct can you be than that? And yet the family lost 5-2 in the Supreme Court.
The facts of the present case are much less graphic. A muddle in Companies House meant that Mr Sebry’s long-established company (Taylor and Sons Limited) was marked on the official Registry as being in liquidation, whereas the true insolvent company was Taylor and Son Limited – just one Son. Companies House corrected the error quickly, but key creditors and suppliers had heard about the false information, and withdrew credit – such that within 2 months Mr Sebry’s company had gone into administration.
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5 February 2015 by Adam Wagner
The deadline for applications has now closed. Than you to the many, many people who applied. Keep an eye on the UK Human Rights Blog for more opportunities to help out.
You can find out more about HRIP here and also follow @rights_info on Twitter.
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5 February 2015 by Hannah Noyce
GS (India) and Ors v SSHD [2015] EWCA Civ 40 – read judgment
The Court of Appeal has confirmed that foreign nationals may be removed from the UK even where their lives will be drastically shortened due to a lack of healthcare in their home states. Removal in those circumstances does not breach Articles 3 or 8 ECHR except in the most exceptional cases.
The appellants were foreign nationals suffering from very serious medical conditions (five from end-stage kidney disease (ESKD) and one from an advanced stage of HIV infection). They were all receiving effective treatment here in the UK. All were at a high risk of very early death if returned to their home states, where the treatment they needed was unaffordable or simply unavailable. The Secretary of State nevertheless decided to remove them, and the Upper Tribunal dismissed their appeals. They appealed to the Court of Appeal on the grounds that removal would breach their rights under Articles 3 and 8 of the ECHR.
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4 February 2015 by Kate Beattie
Michael and others (Appellants) v The Chief Constable of South Wales Police and another (Respondents) [2015] UKSC 2 – read judgment
Duncan Fairgrieve of 1 Crown Office Row was part of the team of counsel representing the appellants in this case. He has had nothing to do with the writing of this post.
The Supreme Court has rejected a challenge to the long-standing rule that the police owe no duty of care in negligence in the context of protecting victims from potential future crimes.
Background
The background facts to the case are shocking. On 5 August 2009, at 2.29am, Ms Michael dialled 999 from her mobile phone. She told the call handler at the Gwent Police call centre that her ex-boyfriend was aggressive; he had just turned up at her house; he had found her with another man; he had bitten her ear really hard; he then drove the other man home with Ms Michael’s car but, before doing so, told her that he would return to hit her; that he was going to be back “any minute literally” and, according to the recorded transcript of the conversation, that her ex-boyfriend had told her “I’m going to drop him home and (inaudible) [fucking kill you]”.
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2 February 2015 by Guest Contributor
Credit: guardian.co.uk
The Counter-Terrorism and Security Bill begins its final stages in the House of Lords today. This blog considered the Bill on its introduction to the Lords. In the interim, both the Joint Committee on Human Rights and the Constitution Committee of the House of Lords have reported, both recommending significant amendments.
Despite repeat flurries of excitement as a coalition of Peers suggest time and again that most of the controversial Communications Data Bill – popularly known as the Snoopers’ Charter – might be a late-stage drop in; the press has, perhaps regrettably, shown little interest in the Bill.
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2 February 2015 by Rosalind English
BB, PP, U and others v Secretary of State for the Home Department [2015] EWCA Civ 9 (23 January 2015) – read judgment
This was an appeal by Algerian nationals who had been found by the Special Immigration and Appeals Commission (SIAC) to constitute a threat to UK national security, against deportation to Algeria.
The appellants had resisted attempts by various home secretaries to deport them via protracted litigation over several years. Despite several findings by the SIAC that their human rights would not be infringed in Algeria, doubts remained, particularly with regard to the period of up to twelve days of initial detention in Algeria, known as “garde a vue” detention, in a barracks run by the Algerian security services (DRS). The purpose of such detention was to interrogate prisoners to obtain evidence for future proceedings. SIAC had wholly accepted the evidence of an innocent British citizen (AB) detained there in a case of mistaken identity as “punitive in the extreme”, but determined that his treatment showed a lack of care over the detainee’s welfare rather than a breach of his human rights. It had conceded that the treatment of the appellants might well be no better, not least because DRS officers considered such treatment to be consistent with respect for human dignity.
The appellants submitted that, in the light of this, SIAC’s conclusion that their treatment would not violate Article 3 of the Convention was legally unsustainable; that SIAC had erred in law in its findings that the Algerian government’s assurances were capable of independent verification; and that the SIAC had also erred in law in maintaining, without any open evidence in support, that the DRS had been present during discussions about those assurances and had subscribed to them.
The Court of Appeal upheld the appeals.
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1 February 2015 by Jim Duffy
Northamptonshire County Council v AS, KS and DS [2015] EWFC 7 – read judgment
A Family Division judge has awarded damages under the Human Rights Act against a local authority in what he described as an “unfortunate and woeful case” involving a baby taken into foster care. Mr Justice Keehan cited a “catalogue of errors, omissions, delays and serial breaches of court orders” by Northamptonshire County Council. Unusually, the judge decided to give the judgment in this sensitive case in public in order to set out “the lamentable conduct of this litigation by the local authority.”
On 30 January 2013, the local authority placed the child (known as ‘DS’) with foster carers. He was just fifteen days old. In the weeks prior to DS’s birth, his mother’s GP had made a referral to the local authority due to her lack of antenatal care and because she claimed to be sleeping on the street. The mother then told a midwife that she had a new partner. He was a heroin addict.
After the birth DS’s mother avoided seeing her midwife. She frequently moved addresses and conditions at home were exceedingly poor. Three days before DS was taken into care, his mother told social workers that her new partner was being aggressive and threatening to her. She reported that he was leaving used needles around the house.
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A fascinating riff has been playing around the London Review of Books since Stephen Sedley (erstwhile Sedley LJ) reviewed a biography of the 18th century judge Lord Mansfield – here – part 3, but the excellent letters of response are open access. 
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