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On 30 March 2018, whilst working on the demolition of an oil tanker on the beach at Chittagong, Bangladesh, Mr Mollah fell to his death.
There is powerful evidence that essentially manual ship breaking of this sort is extremely unsafe and carries environmental risk given the asbestos and heavy metals aboard: see e.g. the work of NGO Shipbreaking Platform here. It does not take much more than a glance at the photographs to appreciate the problem. Conditions were grim; Mr Mollah was working at least 70 hours a week for long pay. Some 200,000 workers are thought to work under these conditions.
But this litigation is happening in the UK Courts. Mr Mollah’s widow did not even know the name of her Bangladeshi employer and she did not sue the owner of the “yard” there – in practice, the beach.
Begum v Special Immigration Appeals Commission and the Secretary of State for the Home Department[2020] EWCA Civ 918
Early last year, after ISIL was dislodged from Raqqah, Shamima Begum was discovered in a refugee camp in Syria. When she expressed a wish to return home to London’s Bethnal Green, Her Majesty’s Government wasn’t welcoming. She had left to join ISIL and HMG did not want her back. It considered her a serious risk to national security and removed her British citizenship. It then refused her leave to enter the UK to appeal that decision. But the Court of Appeal, in the latest legal ruling on the case, has held that fairness requires she be permitted to return to participate in her appeal.
The Court’s decision overturns some, but not all, of the Judgment of the Special Immigration Appeals Commission (SIAC) delivered in February (and reported here).
After something of an hiatus occasioned by the Covid-19 pandemic, we are delighted to welcome Catherine Barnard back onto our podcast with her clear and informative account of the legal steps towards Brexit.
In the latest episode of her podcast 2903cb, Professor Barnard talks to journalist Boni Sones about the latest in the trade talks. What is happening with the timetables and deals to get the UK out of the EU by the end of this year? Tune in to Episode 120 of Law Pod UK to find out.
The High Court recently dismissed a claim of incompatibility with Article 5 ECHR arising from a detention of a minor for his own protection in the case of Archer v Commissioner of Police of the Metropolis[2020] EWHC 1567 (QB).
Background
On 17 February 2012, the Claimant, then 15 years’ old, was struck on the head and stabbed in his back and head by persons he described as members of a local gang, the Deptford Boys. This took place near to his home. He was treated at King’s College Hospital.
But on 22 February 2012, he was arrested on suspicion of violent disorder and possession of an offensive weapon. He was placed in a cell at 7:25am, and by 7:45pm he was charged with those two offences. He was, however, refused bail at 7:53pm. The reasons for refusal by Sergeant Smith are recorded as follows:
[…] it is believed necessary to further detain the person for their own protection, that the detained person has been arrested for a non-imprisonable offence and it is believed necessary to further detain to prevent physical injury to another person, that the detained person has been arrested for an imprisonable offence and it is believed necessary to further detain in order to prevent the commission of a further offence.
The grounds are Dp [sc. detained person] has been involved in a ‘gang’ related fight where he has sustained injuries that required hospital treatment. It is feared that if released on bail there will be repercussions where he may sustain further injuries or inflict violence upon his original intended victims.
On the morning of 23 February, he was taken to Bexley Youth Court, where he was remanded in custody.
It is this period of 13 hours from the refusal of bail to the remand by Court that the Claimant sought to argue was unlawful.
In a recent report entitled “It Still Happens Here”, the Centre for Social Justice (CSJ) and the anti-slavery charity Justice and Care have found a rise in incidents of domestic slavery, and warned that the problem is likely to intensify in the aftermath of the coronavirus crisis.
The campaign group Dignity in Dying has recently brought out a new book called Last Rights: The Case for Assisted Dying, by Sarah Wotton and Lloyd Riley, Director and Policy manager of the campaign group Dignity in Death. The book is designed to restart the discussion on how we provide dying people with greater choice at the end of life.
Even with the best palliative care, some people still suffer terribly at the end of life, as Sarah and Lloyd explain in this discussion. Episode 119 of Law Pod UK highlights the way in which the pandemic has brought death and dying to the centre of pubic discourse and how the time has come again to press for an inquiry on the blanket ban on assisted dying.
See my post referred to in the discussion on the latest Court of Protection case on respecting a patient’s wishes as to the manner of death.
This was an appeal by the secretary of state against a decision of the President of the Family Division concerning the exercise of the family court’s jurisdiction to make a female genital mutilation protection order (FGMPO) under the Female Genital Mutilation Act 2003 Sch.2 Pt 1 para.1. The child concerned (“A”), was under imminent threat of deportation to Bahrain or potentially Sudan. The original FGM protection order in relation to A was made by Newton J in December 2019. He said that
It is difficult to think of a clear or more serious case where the risk to A of FGM is so high.
Section 2 of the Female Genital Mutliation Act establishes the offence of assisting a girl to mutilate her own genitalia, where a person
aids, abets, counsels or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris.
Section 3 extends this to “assisting a non-UK person to mutilate overseas a girl’s genitalia”.
FGMPOS offer a legal means to protect and safeguard victims and potential victims of FGM. They are granted by the family court and are unique to each case. They contain conditions to protect a victim or potential victim from FGM, including, for example, surrendering a passport to prevent the person at risk from being taken abroad for FGM or requirements that no one arranges for FGM to be performed on the person being protected.
After the order is issued, the police receive a copy, together with a statement showing that the respondents and any other persons directed by the court have been served with the order or informed of its terms.
In this case the President of the Family Division had held that in exercising its discretion about making an FGM protection order, a family court was not bound to take into account, even as a starting point, a previous assessment of risk of FGM made by the Immigration and Asylum Chamber of the First-tier Tribunal in determining an asylum application based upon the risk of FGM upon return.
In R (Reprieve & Ors) v Prime Minister [2020] EWHC 1695 (Admin), the High Court made a preliminary ruling that Article 6(1) of the ECHR does not apply to the forthcoming judicial review of the Government’s decision not to establish a public inquiry into allegations that the UK intelligence services were involved in the torture, mistreatment and rendition of detainees in the aftermath of 9/11. It was further held that the claimants are not entitled to the level of disclosure of open material outlined in SSHD v AF (No 3) [2009].
Angus McCullough QC of 1 Crown Office Row was instructed as a Special Advocate in this case.
Mr Justice Lewis has refused permission to bring a judicial review in what is arguably the most comprehensive and wide-reaching challenge brought to date to the legality of the lockdown Regulations and the decision to stop providing education on school premises (save for the children of key workers) in R (Dolan and Ors) v Secretary of State for Health and Social Care and Secretary of State for Education[2020] EWHC 1786 (Admin).
The spotlight during the pandemic has been on frontline workers in the medical profession. But if you think of it, the real hazards are to be found in the dentist’s surgery, where most interactions with patients involve an operation in the mouth, whether it be drilling, cleaning or extraction. Most of what a dentist or a dental hygienist does is what has become widely known as an AGP – “aerosol generating procedure”.
In the latest episode of Law Pod UK Rosalind English talks to the head of indemnity at the British Dental Association Len D’Cruz about the challenges facing the dental profession during lockdown and the even greater hurdles to be faced after dentists resumed practice on the 8th of June 2020.
The Supreme Court recently dismissed two appeals concerning the role and rights of siblings in children’s hearings in Scotland. It held that the provisions of the Children’s Hearings (Scotland) Act 2011 in question were compatible with article 8 of the European Convention on Human Rights.Background
The appeals concerned whether a sibling is a “relevant person” for the purposes of the Children’s Hearings (Scotland) Act 2011 (‘the 2011 Act’), which governs the children’s hearings system in Scotland.
A relevant person is defined as including a person who has parental responsibilities or rights in relation to the child (section 200(1) of the 2011 Act). If a person does not fall under this definition, they may still be classed as a relevant person under a procedure set out in sections 79-81. Section 81(3) provides that a person can be deemed a relevant person if it is decided that the person has, or recently had, a significant involvement in the upbringing of the child. In most circumstances, this would not include a sibling.
The latest reports of HM Chief Inspector of Prisons and the Parliamentary Joint Committee on Human Rights lay bare the conditions in some British prisons.
Some of the language that is used to describe living conditions in the Chief Inspector’s report is shocking – including “appalling”, “squalid”, “intolerable”, “extremely squalid” and beset with “vermin and filth”.
The Chief Inspector’s view is that such conditions “should not feature in 21st century jails”. This conclusion was expressed prior to the further impact caused by the Covid-19 pandemic.
The conclusion of the Parliamentary Joint Committee on Human Rights is that the Government’s response and the deficiencies in the measures to mitigate the impact of this “have put at risk the right to family life of up to an estimated 17,000 children of mothers in prison”.
In the view of this author, the evidence indicates that in several respects the UK may well be in breach of vital protections for prisoners and their families under Articles 3 and 8 of the European Convention on Human Rights (ECHR). This extended piece will examine these issues in detail.
It has been a quiet week in the courts from a human rights perspective. The Supreme Court gave judgment on a divorce case and a social security fraud, and whilst the Court of Appeal and High Court were more forthcoming in terms of the number of decisions made, family law and commercial cases dominated. Legal buffs may however be interested to note Scales v Motor Insurers’ Bureau [2020] EWHC 1747 (QB), in which the High Court applied Spanish law in a road traffic accident case, whilst celebrity watchers and students revising for their civil litigation exams may appreciate seeing how the court applied the test from Denton to grant Johnny Christopher Depp II relief from sanctions (who knew there was a Johnny Christopher Depp I?) – Depp v News Group Newspapers Ltd & Ors [2020] EWHC 1734 (QB).
A quiet week in the courts did not however extend to a quiet week in the news…
Harry Dunn was killed when his motorcycle collided with a car being driven on the wrong side of the road by Mrs Anne Sacoolas, the wife of a member of the administrative and technical staff of the US Embassy based at RAF Croughton. The Claimants (Harry Dunn’s parents) sought to adduce expert evidence from a retired diplomat Sir Ivor Roberts, and also made an application for specific disclosure.
The Divisional Court summarised the background to the applications as being the judicial review of:-
The decision made by the Foreign Secretary that Mrs Sacoolas had diplomatic immunity under the Vienna Convention on Diplomatic Relations;
The allegedly unlawful obstruction by the Foreign Secretary of a criminal investigation by the Northamptonshire Police;
The allegedly unlawful acceptance by the Northamptonshire Police of the advice of the Foreign Secretary or the Metropolitan Police that Mrs Sacoolas had diplomatic immunity;
The alleged breach of the investigative duty under Article 2 ECHR as a result of the Foreign Secretary and the Northamptonshire Police’s error of law as to Mrs Sacoolas’s diplomatic immunity;
The allegedly unlawful ceding of sovereignty over a military base in the UK without Parliamentary consent; and
The alleged suspension of the laws of the land without Parliamentary consent through affording diplomatic immunity to family members of the relevant personnel.
How to determine “best interests” in the case of an adult lacking capacity, where a proposed medical donation for the benefit of a close relative may cause lasting harm to the donor?
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