Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: The Guardian
The Government is considering whether to abolish prison sentences lasting six months of less.
Rory Stewart, the Prisons Minister, has argued that short jail terms are only serving to increase crime by mixing minor offenders with hardened criminals. He cited research suggesting that community sentences may help reduce the risk of reoffending when compared to short term prison sentences.
In Scotland there is already a presumption against such sentences. Re-offending has fallen to its lowest level for nearly two decades and the Scottish government are looking to widen the scheme.
The change would impact upon around 30,000 offenders, helping alleviate pressure on the overburdened prison system. Exceptions would be made for offenders who were violent or had committed sexual crimes.
The suggestion has already proven controversial. The Ministry of Justice has emphasised it is only exploring options and no decision has been made.
ARB v IVF Hammersmith & Another  Civ 2803 (17 December 2018) – read judgment
Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful birth arising from a breach of contract.
The facts of the case are set out in my podcast on the first instance decision (Episode 12 of Law Pod UK). Briefly, an IVF clinic had implanted the claimant father’s gametes into his former partner without his consent. This occurred after the couple had sought fertility treatment at the clinic resulting in the birth of a son some years previously. Following standard practice, the clinic froze five embryos made with their gametes. Subsequently, the couple separated. Some time after this separation the mother, R, attended the clinic without ARB and informed the staff that they had decided to have another child. The form requiring consent from ARB for thawing and implanting the embyro was signed by R, and the clinic failed to notice the forgery. R went on to give birth to a healthy daughter, E, who is now the sibling of ARB’s son. There is a Family Court order confirming parental responsibility and shared residence in respect of both children. Continue reading →
But what happened in the courts? Oh what an adventure it has been, dear reader. Strap on your seat belts and join me as we take a whistle-stop tour through 10 of the biggest legal battles of the last year.
This case is a salutary reminder to all who conduct litigation about the necessary elements of procedural fairness which continue to underlie our system of civil justice; even in a modern context when a cards on the table approach characterises many disputes from a very early, often pre-action, stage.
In Sait v GMC the context was regulatory proceedings against Mr Sait, an experienced consultant orthopaedic surgeon. At the conclusion of a seven day hearing, the MPTS found certain facts proved against him in a case alleging inappropriate sexually motivated conduct towards a patient. The Tribunal ordered that he be suspended for 3 months.
He appealed against the finding that he did what he did with sexual motivation and therefore against the finding that his fitness to practise was impaired by virtue of misconduct. The grounds of appeal were that the Tribunal failed to observe essential standards of procedural fairness because it was never sufficiently put to the appellant, whether in the course of cross-examination, or in the Tribunal’s own questions, that his conduct was sexually motivated.
2018 provided much food for thought for those practising in inquest law, with significant judgments on the burden on proof in suicide, on scope in relation to the Birmingham pub bombings, on causation in relation to medical negligence, on the relevance of non-causative findings to the record of inquest and on costs. In the most recent episode of Law Pod UK I am joined by Jeremy Hyam QC, who provides a whistlestop tour of this year’s the most significant cases.
Citations for cases mentioned on the podcast and links to related blog articles written by members of chambers are contained below, as is a brief analysis of R (Paul Worthington) v HM Senior Coroner for the County of Cumbria EWHC 3386 (Admin), a decision which was unfortunately handed down too late for consideration in the podcast episode. The episode is a available here.
My response to the proposals – as I saw things then – is on my blog here. Thoughts of divorce reform throw up two important human rights issues: one a direct Article 6 question; and the other – which it is surely time for law reformers and the government to confront? – is a discrimination point (Art 14).
But first a little history. The then Labour government, on Leo Abse MP’s private member’s bill, passed with (more or less) approval of the Church of England, the Divorce Reform Act 1969 (in force from 1 January 1971). It was consolidated into Matrimonial Causes Act 1973 (MCA 1973) which represents the modern law and the modern statutory underpinning for financial distribution on divorce or nullity. Mirror provisions apply for same gender couples: Civil Partnership Act 2004. Wholly different finance rules apply for unmarried cohabitants.
The Matrimonial Causes Act 1973 (MCA) section 1 is very simple. There is one ground for divorce: irretrievable breakdown of marriage (s 1(1)). To prove that ground a petitioner (P) must prove one or more of five facts: adultery; behaviour making it unreasonable for P to live with the other spouse/partner (R); desertion for two years; living apart for two (with consent); or five years.
Reformers – including from their inception, the group of family law solicitors, now Resolution – have objected to the blame inherent in the first two facts, and the tendency which this may produce to leave a nastier taste, than need be, in the mouth of divorcees.
This week the eyes of the United Kingdom, and quite possibly the whole of Europe, were trained on Luxembourg for an eagerly awaited judgement from the Court of Justice of the European Communities. However, before we embark on a lengthy and forensic analysis of the German/Slovakian case of AlzChem v Commission (State aid – Chemical industry – Judgment)  EUECJ T-284/15 (13 December 2018), we should pay some attention to the week’s legal Brexit developments…
The CJEU this week delivered judgement in the case of Wightman and Others – (Notification by a Member State of its intention to withdraw from the European Union – Judgment)  EUECJ C-621/18 (10 December 2018). The case had been referred to the Luxembourg court by the Inner House of the Court of Session and addressed the feasibility of unilateral revocation of Article 50 TEU. The UK government sought to have the application ruled inadmissible on the grounds that the question posed was hypothetical, no such revocation of Article 50 having been attempted or even contemplated. The European Council and Commission meanwhile contended that although revocation was possible, the right was not unilateral. They appeared to fear abuse of Article 50 by member states who could unilaterally seek to terminate their membership of the European Union, revoke that termination and then repeat the exercise as necessary to circumvent the two-year time limit imposed by Article 50 on withdrawal negotiations. Continue reading →
The atrocities that took place in Europe during the Second World War were a major catalyst for moving away from this state-centred view of international relations. As Johannes Morsink notes in his meticulous historyof the drafting of the UDHR, the Holocaust was the single most important event that shaped its writing.
The UDHR recognises that ‘all human beings are born free and equal in dignity and rights’ regardless of their race, sex, national origin or other status. But did it go far enough? After all, the vast majority of the earth’s inhabitants are nonhuman. Just as individual humans are particularly vulnerable to the excesses of state and other forms of concentrated power, so too are animals particularly vulnerable to abuse at the hands of humans.
The tyrannical exercise of human power over the other animals is ubiquitous, whether it’s subjecting them to painful biomedical experiments, destroying their natural habitats, forcing them to perform in circuses and aquariums, or industrially rearing and exterminating them for food. Are we systematically violating the rights of animals when we treat them like this? Ought we take steps to rectify this with a Universal Declaration of Animal Rights?
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.
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 and without ads on Audioboom, iTunes, PodBean,The Podcast App or wherever you get your podcasts.
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 →
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 1 AC 310, the House of Lords decision in Page v Smith 1 AC 155 and the decision of the Court of Appeal in A Liverpool Women’s Hospital NHS Foundation Trust v Ronayne  EWCA Civ 588. Continue reading →
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  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).
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