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Why wasn’t Lucy Letby stopped sooner? This is the burning question that the families of her victims, and the public, are now asking. Steve Barclay, the Health Secretary, has decided that the best means of answering it is a ‘non-statutory public inquiry’. But what is such an inquiry, and will it be better than a full-blown statutory public inquiry?
Non-statutory inquiries can be set up by anyone, at any time, to investigate anything. They proceed in private and have no legal powers to demand the disclosure of documents or to call witnesses to give evidence. But they have the twin merits of speed and informality. The former may be very valuable, particularly where urgent changes are needed. The latter can facilitate a greater degree of candour about errors that have been made, as witnesses feel less pressure than they do in the full glare of public scrutiny. But such inquiries are entirely reliant on organisations and individuals to assist them. This cannot be guaranteed, particularly where livelihoods, reputations, and even freedoms, are at stake. So they may fail where this doesn’t happen.
Non-statutory inquiries also don’t always give victims, their families, and the public, the assurances they need that the Government understands the gravity of what has happened. An example of this is non-statutory inquiry into the horrific abuse perpetrated by David Fuller – who sexually assaulted many dead bodies that were supposedly safe in a hospital mortuary. Ordered by the then Health Secretary, Sajid Javid, on 8th November 2021, its proceedings have been entirely behind closed doors and it has yet to report almost two years on.
In this two-part article, Maya Sikand KC, Tom Stoate and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield.
The first part explored whether coroners should have jurisdiction to investigate stillbirths.
This second part seeks to answer the question: should foetuses ever be protected by a ‘derivative’ right to life?
For a brief introduction to Aisha Cleary’s case, please see Part 1.
Article 2 ECHR rights in utero
Article 2, encapsulating the right to life under the European Convention on Human Rights (‘ECHR’), does not provide temporal limitations on the right to life and does not define ‘everyone’ (‘toute personne’) whose life is protected by the Convention.[1] The European Court on Human Rights (‘ECtHR’) has left it to the margin of appreciation of Convention states to decide when life begins for the purposes of Article 2. In England and Wales, ‘Coroners do not have jurisdiction to conduct an investigation concerning a foetus or a stillborn child, as where there has not been an independent life, there has not legally been a death’.[2]
One of the candidates running in Ecuador’s upcoming presidential election has been assassinated. Fernando Villavicencio was shot dead at a campaign rally in Quito. His election platform addressed the issues of corruption and government links to organised crime. There is speculation that the powerful Los Lobos gang is behind the killing. This follows the news two weeks ago of the fatal shooting of Agustín Intriago, a popular city mayor. Formerly hailed as one of the safest countries in South America, Ecuador has been overrun in recent years by organised crime and international drug cartels, while democratic rights of protest have been rolled back by the political establishment.
British water companies are facing lawsuits valued at £800 million for failing to report pollution. Class actions claims are being brought against six water companies on behalf of the public. The claimants allege that the companies’ failure to report the discharge of raw sewage into the supply is a breach of competition law and should have lowered the consumer price. Carolyn Roberts, the environmental and water consultant bringing the claims at the competition tribunal, contends that customers have been overcharged as a result of the water companies abusing their power as privatised monopolies.
A group of asylum seekers which refused to board the Bibby Stockholm barge was warned on Monday that government support would be withdrawn if they did not move onto the accommodation. The Justice Secretary, Alex Chalk, commented that the illegality of the proposal was “something that the courts would have to consider” but that it was “unlikely” to be illegal, also remarking that the asylum accommodation was “sparse and […] a bit austere but, frankly, that is not unreasonable.” The charity Care4Calais have criticised the scheme as likely to cause vulnerable people emotional distress. On Thursday, however, all migrants were removed from the vessel after it was discovered that Legionella bacteria had entered the water supply.
In this two-part article, Maya Sikand KC, Tom Stoate, and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield.
This first part seeks to answer the question: should coroners have jurisdiction to investigate stillbirths?
The second part will examine whether foetuses should enjoy Article 2 rights which do not conflict with the rights of the mother.
Rianna Cleary, who was 18 years old at the time, gave birth to Aisha Cleary alone in her cell in HMP Bronzefield, on the night of 26 September 2019, without medical or any other assistance. Ms Cleary’s two calls for help via the prison emergency intercom system in her cell were first ignored, then unanswered – despite there being a 24-hour nursing station on her wing in the prison. Terrified and in pain, without knowing what to do, Ms Cleary felt compelled to bite through her umbilical cord. Aisha’s birth was not discovered by prison staff until the next morning – after other prisoners raised their concerns – at which time Aisha was ‘not moving,had a tinge of blue on her lips, butwasstill warm’.[1] Unsuccessful resuscitation attempts were made, with an adult oxygen mask in the absence of any paediatric or neo-natal mask. Less than an hour later, paramedics confirmed that Aisha had died. The Senior Coroner for Surrey, Richard Travers, stated that Aisha ‘arrived into the world in the most harrowing of circumstances’.[2]
Following a month-long inquest, involving ten interested persons (‘IPs’) and more than 50 witnesses, including three expert witnesses, Mr Travers concluded that numerous causative failings contributed to Aisha’s death.
In the early hours of 24 March 1922, a group of men, of whom most were in police uniform, broke into the North Belfast home of prominent Catholic businessman Owen McMahon and shot him dead, along with four of his sons and a male employee. Between 1920 and 1922, hundreds of people were killed, and thousands forced out of their homes, particularly in Belfast and the surrounding townlands. These grizzly events marked the birth of Northern Ireland.
Alexei Navalny – a vocal critic of Putin’s government and prominent opposition figure in Russia – has been sentenced to a further 19 years in prison. Navalny is already serving an 11-year sentence for various charges. The hearing for this most recent conviction was held behind closed doors, at a penal colony in Nelekhovo (to the east of Moscow). The opposition leader was found guilty on six counts, including a charge for inciting and financing extremism. As part of this most recent conviction, Navalny will be moved to a “special regime colony”, where his access to visitors (including family members and his legal team) will be reduced. Volker Türk, the United Nations High Commissioner for Human Rights, called for Navalny’s release and denounced the “repressive crackdown on freedom of expression and political opposition in Russia”.
In a similar piece of news, the UK Government imposed sanctions on 6 individuals in connection with the conviction of Vladimir Kara-Murza, a prominent critic of Russia’s war in Ukraine. Mr Kara-Murza is a dual Russian and British national, who was sentenced earlier this year to 25 years in a penal colony for treason and spreading “knowingly false information” about the Russian armed forces. Mr Kara-Murza’s appeal was dismissed this week, prompting the UK Government to initiate fresh sanctions against the three judges, two prosecutors and “expert witness” involved in Kara-Murza’s appeal. The UK Government says the conviction is “politically motivated targeting” and Mr Kara-Murza is being persecuted for his anti-war stance. The sanctions include asset freezes and travel bans against the individuals concerned.
Two thinktanks – Civil Exchange and the Sheila McKechnie Foundation – have issued a damning report on the state of freedom of expression and democratic discourse in the UK, condemning the “political attack” on democratic spaces by government ministers. The report, titled “Defending our Democratic Spaces”, laments the attempts by Conservative ministers to portray judges, lawyers, charities, campaigners and parts of the media as a “block to democracy rather than key components of it”. Other key issues highlighted in the report include the increasingly authoritarian anti-protest laws being passed, new ID restrictions on the right to vote, reduced access to judicial review, and the creation by ministers of an “intemperate environment” as part of ongoing culture wars. The result, it is feared, is a “chilling effect” on public campaigning and further polarisation of UK politics. The political attacks on freedom are not just affecting those on the left – we also recently saw the closure of Nigel Farage’s bank account with Coutts on the basis of his political beliefs and the subsequent resignation of Natwest’s CEO.
On the face of it, the issue decided by the Tribunal (General Regulatory Chamber, Charity) on 6 July 2023 was a narrow one: whether Mermaids was entitled to challenge the Charity Commission’s decision to register the LGB Alliance as a charity. But its ruling – that Mermaids could not – was highly significant as a robust affirmation of the value of debate in a democratic society.
In a decision that may come as little surprise to those working in the fields of inquiries and public law, the Divisional Court consisting of Dingemans LJ and Garnham J dismissed the Cabinet Office’s application for judicial review of a notice issued by Baroness Hallett, the Chair of the UK Covid-19 Inquiry (“the Inquiry”) requesting the production of WhatsApp messages.
The issues for determination related to the scope of the powers of the Chair under the Inquiries Act 2005 to seek and obtain material in the course of her investigations pursuant to the Inquiry’s Terms of Reference. The Cabinet Office sought to argue that some of the material sought by the Chair was “unambiguously irrelevant” to the Terms of Reference. The Chair’s position was that all documents she requested were of “potential relevance” to her lines of investigation. The Divisional Court gave permission to apply (i.e. met the threshold for review and the claim raised an important issue as to the interpretation of the Inquiries Act 2005) but went on to dismiss the substantive claim.
R ((AAA) Syria and Ors) v Secretary of State for the Home Department[2023] EWCA Civ 745
The Claimants in this case are 10 individual asylum-seekers from Syria, Iraq, Iran, Vietnam, Sudan and Albania who entered the UK irregularly by crossing the English Channel in small boats, together with one charity, Asylum Aid.
Concluding five days of speculation, Huw Edwards was named on Wednesday as the BBC figure at the centre of the Sun’s allegations of sexual impropriety. The newspaper claimed the presenter had paid a young person for ‘sordid images,’ suggesting a criminal offence may have taken place if the teenager had been under 18 when the arrangement was made. Edward’s wife, Vicky Flind, has stated that her husband has been placed in hospital, the allegations having provoked a mental health crisis. The young person’s lawyer has denied the Sun’s story, stating that ‘nothing unlawful’ had occurred. The police have indicated no criminal charge will be pursued, undermining the media’s public-interest prerogative to publish the allegations. The Sun has now stated that it never intended to allege criminality, but legal commentators have suggested Edwards may be able to pursue claims for libel action and breach of privacy. A barrier to such actions is that Edwards’ identity was neither stated outright nor reasonably inferable from the initial publications, only being revealed later by his wife.
Last month marked one year since the startling repeal of Roe v Wade on the 24th June 2022 – the day the US Supreme Court rowed back the right of American women to obtain an abortion. Almost exactly a year later, back in the UK, last month saw the conviction of Carla Foster for the late abortion of her 32-week-old foetus. The case has brought abortion law back into the public conscience this year and reignited the fears around the safety of women’s rights to abortion in the UK. Thousands of protestors descended on the steps of the Royal Courts of Justice days after the conviction was announced, fighting for a woman’s right to abortion to be enshrined in UK law and opposing the fact that, legally, abortion remains a crime in the UK.
On Thursday, the High Court dismissed a claim for judicial review brought by the Cabinet Office, regarding a notice issued by the Chair of the COVID-19 Inquiry which requested the disclosure of correspondence between former Prime Minister Boris Johnson and his senior advisers. The Cabinet Office argued the Inquiry Chair’s notice was unlawful because it required the disclosure of significant quantities of ‘unambiguously irrelevant’ material. It argued it should be allowed to redact obviously irrelevant detail from the documents, including from Mr Johnson’s WhatsApp messages. The Chair of the Inquiry, Baroness Hallett, maintained that s. 21 of the Inquiries Act 2005 empowered her to request and see unredacted materials which could be relevant to the investigation. The High Court agreed. It held that the disclosure of some irrelevant documents did not render the request for information unlawful. An enquiry of this nature must be able to ‘fish’ for documents; to make informed ‘but speculative requests for documents relevant to lines of inquiry, or documents which lead to new lines of inquiry’. The government has said it will not appeal the decision.
Traditionally, the courts have been extremely reluctant to impose a positive duty of care on the police to protect or warn members of the public who may be potential victims of crime. This sort of liability, it is thought, would lead to defensive policing.
In a leading authority on this issue, Hill v Chief Constable of North Yorkshire Police (the Peter Sutcliffe case 1989), the House of Lords said that the imposition of a duty of care to individual members of the public would be detrimental.
“A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime”.
In Episode 187 of Law Pod UK, Rosalind English discusses with barrister Conor Monighan of 5 Essex Court the implications of this decision for the police and other public authorities in the UK. I would urge anyone interested in this subject not only to listen to the podcast but also to read Conor’s deep dive into the case in his recent post on UKHRB: A Common Law Duty of Care to Issue an Osman Warning? In that post you will find references to previous authorities on police liability in this context, with full citations.
And … please keep the feedback rolling! It will only take you a couple of minutes to fill in this very short anonymous survey. Thank you in advance. www.surveymonkey.co.uk/r/LawPodUK
the repeated detention of the claimants – foreign nationals with limited leave to remain – when they returned to the UK from travelling abroad, so that they could be questioned about their NHS debts, was unlawful;
the policy pursuant to which the claimants were detained (the “Policy”) was unlawful because it contained a positive statement of law which was wrong or, alternatively, because it failed to provide a full account of the legal position;
the Policy was unlawful because it was unpublished; and
the Secretary of State for the Home Department (“SSHD”) was in breach of the public sector equality duty (“PSED”) under s.149 of the Equality Act 2010.
In reality, the facts carried the day. This was true not only in relation to the unlawful detention issue, but also on some other points – for example, the SSHD failed to evidence any public interest in not publishing the Policy or any consideration given to the equality impacts of the exercise of the relevant powers of detention. Insofar as there are lessons to be learned, they are likely to be found in the criticisms levelled at the evidence (or lack thereof) provided by the SSHD.
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