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The Home Office has tightened its ‘good character’ guidance for citizenship applicants who entered the UK illegally or via dangerous routes. From 10 February 2025, those applying who arrived without ‘a required valid entry clearance or electronic travel authorisation having made a dangerous journey’ will ‘normally‘ have their citizenship applications refused. This is ‘regardless of the time that has passed since the illegal entry’. A ‘dangerous journey’ includes, but is not limited to, ‘travelling by small boat or concealed in a vehicle’. The Home Office has confirmed these new rules would ‘likely not apply’ to children, ‘given illegal entry is normally considered outside of a child’s control’. This policy shift reflects the government’s attempt to deter illegal migration via ‘small boats’, and comes alongside the introduction of the recent Border Security, Asylum an Immigration Bill. The change departs from the policy that illegal entrants could have their citizenship applications considered after ten years. These updates have been criticised as a potential contravention of UK obligations under the 1951 Geneva Convention, which prohibits the penalisation of asylum seekers and refugees for illegal entry.
MI5 has admitted providing false information to the courts regarding neo-Nazi agent, ‘X’, accused of attacking his former partner ‘Beth’. Her complaint to the Investigatory Powers Tribunal (IPT) was heard in her absence in closed sessions, due to MI5’s claim that it could neither confirm nor deny X’s identity for national security reasons. However, it was revealed that a senior MI5 officer had disclosed X’s identity to a BBC journalist, while attempting to dissuade the organisation from naming him in a report. This contradicted the Security Service’s stance in evidence given to multiple courts that national security reasons meant its ‘neither confirm nor deny’ policy was strict. The MI5 Director-General has given an ‘unreserved apology to the court’, emphasising the agency’s commitment to accuracy and transparency. This revelation has raised concerns about the reliability of the evidence provided by the security service, which is given deferential treatment in the courts. Home Secretary Yvette Cooper has announced an independent review into the incident.
In International News
Ukraine will not be attending upcoming US-Russia peace talks in Saudi Arabia, with European leaders also excluded. The continent’s most powerful leaders will gather for a crisis summit in Paris to discuss how to safeguard the future of European defence in the event of US disengagement, and how best to support Ukraine’s position. This also comes after JD Vance, US Vice-President, has recently accused European democracies of stifling freedom of speech and religion, criticising the UK’s conviction of Christian Adam Smith-Connor for breaching a safe zone around an abortion clinic in Bournemouth. This reflects the fractures in relations between the US and Europe, and there is increasing uncertainty over what role the US will play in future European security. Former prime minister of the UK, John Major, has warned that global democracy is under threat if the US withdraws from its leading role in the world, and that American ‘isolationism’ risks emboldening Russia and China to step into the vacuum. Crucially, any peace deal concluded without Ukraine’s involvement risks undermining the country’s sovereignty and right to self-determination, which are foundational principles of international law. Without Ukrainian or European presence at the talks, it is also unclear what stance will be taken regarding justice and accountability for human rights violations that are alleged against Russia during the war. Whatever the outcome of the upcoming talks, the balance of the international order appears to be at stake.
In the Courts
The Supreme Court has allowed the appeal of Joseph El-Khouri against his extradition to the US to answer crimes of alleged insider trading. The decision clarified the definition of an ‘extradition offence’ and the operation of the ‘double criminality’ rule under s.137 of the Extradition Act 2003. This rule provides that the relevant conduct must constitute a crime in both the UK and the requesting country. Section 137 provides separate tests giving effect to the principle, depending on whether the acts took place in the requesting state’s territory (s.137(3)) or outside of it (s.137(4)). The Supreme Court rejected the USA’s arguments that, because the effects of Mr El-Khouri’s conduct were likely to be felt on US markets, they occurred ‘in’ the US . Departing from Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, the court held that the conduct occurred in the territory where the physical acts took place, not where their effects were felt. The court held that the statutory test for an extraditable offence was unworkable unless there was a clear distinction between offences taking place ‘in’ and ‘outside’ the requesting territory. The definition of conduct occurring ‘in’ the requesting territory had been too wide in Cando Armas, and this decision has labelled Lord Hope’s obiter comments in that case in particular as ‘mistaken’. In the present case, because almost all the relevant acts occurred in the UK and not in the US, Mr El-Khouri’s conduct had been wrongly classified as subject to the s.137(3) test. Although insider dealing was an offence under both US and UK criminal law, he could not be extradited because there was no provision of UK law which would have permitted a prosecution in equivalent circumstances of an individual in the US.
In Episode 214 Emma-Louise Fenelon speaks to Rachel Marcus of 1, Crown Office Row and Dr Anna Colton, an experienced Clinical Psychologist, about vicarious trauma and trauma-informed lawyering.
Dr Colton’s book How to Talk to Children about Food, is available here:
· More information about Dr Colton is available here
The episode mentions:
· Counsel magazine article: “The use of clinical supervision” by Mark Mason available here
· Law Pod Episode 147, Vicarious Trauma in the Legal Profession available here
· Vicarious Trauma in the Legal Profession: a practical guide to trauma, burnout and collective care by Rachel Francis and Joanna Fleck available here
· The Body Keeps the Score, Bessel Van Der Kolk available here
Law Pod UK aims to inform and enlighten our audience on important developments in civil and public law with a range of guests from 1 Crown Office Row and other legal experts. Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM, ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to your podcasts.
Please remember to rate and review us if you like what you hear.
In Tickle & Anor v The BBC & Ors [2025] EWCA Civ 4, the Court of Appeal considered the High Court’s decision to anonymise the names of several judges who had made decisions in historic care proceedings and private family law proceedings (“the historic proceedings”).
The historic proceedings related to Sara Sharif, who was murdered by her father and stepmother in August 2023. On 18 August 2023, the Local Authority made an application for a wardship in respect of Sara Sharif’s five siblings. On 8 September 2023, the journalists requested disclosure of documents relating to the historic proceedings.
Mr Justice Williams made the following order, which was appealed by the claimant journalists:
… no person may publish any information arising from the disclosure of the documents from these proceedings to the public, or a section of it, which includes: …
g. The name of any third parties referred to in the historic proceedings for the avoidance of doubt including social worker, guardian other named professionals and experts instructed in the proceedings and any Judge who heard the historic proceedings (save for Mr Justice Williams). …
including not repeating such information by reference to the disclosed documents even if it is already in the public domain
[emphasis added]
Notably, when Mr Justice Williams pronounced the Order in court, no party had asked for the names of the three circuit judges who had been involved in the historic proceedings (“the historic judges”) to be anonymised. The judge had heard no submissions on the point. He had not mentioned to the parties that he had in mind to make the order he did [5].
The grounds of appeal were as follows:
i) It was a serious procedural irregularity for the judge not to have given reasons before anonymising the historic judges.
ii) The judge adopted an unfair, biased and inappropriate approach to the journalists and the media generally (including relying on his own erroneous analysis of alleged media irresponsibility), thereby unacceptably encroaching on their rights under article 10 of the European Convention on Human Rights (ECHR). This ground was added by amendment and permission has not yet been granted to allow it to be pursued.
iii) The judge ought to have held that the demands of open justice meant that anonymity for a judge could not be justified within the framework of balancing article 8 and article 10 of the ECHR.
iv) The part of the Order anonymising the historic judges could not be justified in the absence of any specific application or evidential foundation, and was inimical to the proper administration of justice.
The Judgment
The Court of Appeal considered that there were three main issues to determine:
i) Whether the court had jurisdiction to prohibit the publication of the names of judges, and if so how and in what circumstances.
ii) Whether the part of the Order anonymising the historic judges was irregular for lack of submissions, evidence or reasons.
iii) Whether the judge’s comments in his judgment demonstrated inappropriate bias against or unfairness towards the media.
The Court of Appeal considered that the statutory limitations contained in section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1989 do not displace the open justice principle or create any separate “shielded justice” environment. They provide a degree of privacy for certain proceedings relating to children according to their terms [45]. Further, section 12 of the Administration of Justice 1960 makes clear that its provisions do not apply to judges hearing the case: “Court orders always name the judge, so, in that way, section 12 of the AJA 1960 expressly excludes anonymity for the judge” [51].
The Court of Appeal notably stated that:
In accepting office, all judges will or should be aware that that is the expectation, because public scrutiny of judges and the justice process is essential to the rule of law [55].
Issue 1: Was there jurisdiction to prohibit the publication of the names of judges?
The Court of Appeal considered whether Mr Justice Williams had jurisdiction to order the anonymity of the historic judges. In resolving this question, the Court of Appeal considered that, notionally, the names of the historic judges had been in the public domain as (a) the name of the judges appeared on public documents and on each of the orders that they made and (b) the names of the judges would have appeared in the public listings as sitting on the days in question at the courts in question.
The Court of Appeal considered the relevant rights under Articles 2, 3, and 8, which apply as much to judges as to any other person. However, there was no evidential basis on which the threshold for the application of Articles 2, 3, or 8 had been reached [64]. There was no need to undertake any balancing exercise between Articles 8 and 10 as there was no evidence about the risks to the historic judges [69].
The Court of Appeal concluded that there was no jurisdictional foundation for making the anonymity order.
The following comment from the Court of Appeal (at [66] will have wider application beyond the facts of this case:
The authorities that I have cited demonstrate that judges are in a special position as regards open justice. The integrity of the justice system depends on the judge sitting in public and being named, even if they sit in private. The justice system cannot otherwise be fully transparent and open to appropriate scrutiny.
Issue 2: Was there irregularity for lack of submissions, evidence or reasons?
The appeal was allowed on this ground, on the basis that the Mr Justice Williams ought to have asked for submissions and evidence prior to making his decision.
In the absence of specific evidence about risks or threats to the ECHR rights of the historic judges, Mr Justice Williams ought not to have taken any steps to anonymise the names of the historic judges.
Issue 3: Was there inappropriate bias against or unfairness towards the media?
The Court of Appeal noted Mr Justice Williams’s language when discussing media reporting as well as his decision to adjourn the journalists’ application for permission to appeal being akin to dismissing the application.
The appeal was also allowed on this ground.
Comment
This decision will have wider application beyond the facts of this case, and beyond family law. The Court of Appeal reiterated the necessity for open justice, and confirmed that transparency requires judges to be named, even if they sit in private.
The Court of Appeal did caveat the decision by clarifying that judges are not obliged to tolerate any form of abuse or threats. The requirements to consider in such cases are:
Evidence about the risks to the judges;
The court being satisfied that those risks could not be adequately addressed by other security measures;
The court concluding that the risks were so grave that they provided a justification for overriding the fundamental principle of open justice.
The historic judges were given 7 days before their names are published, to allow HMCTS to put in place measures to protect them.
Anogika Souresh is a barrister at 1 Crown Office Row, Brighton
Medical experts have claimed that Lucy Letby did not murder any babies at the Countess of Chester Hospital, concluding that the infants died of natural causes and negligent medical care. Having reviewed the medical evidence, a panel of 14 world-leading neonatologists have concluded that they “did not find any murders”. The case has been submitted to the Criminal Cases Review Commission in light of what Letby’s legal team described as overwhelming evidence of a miscarriage of justice. Letby is currently serving 15 whole-life prison terms having been convicted of murdering seven babies. Two previous attempts to challenge her convictions at the Court of Appeal have been dismissed. The CCRC is expected to review the panel’s full report in the coming weeks. If it is decided that there is a real chance of quashing the convictions, the CCRC can send the case back to the Court of Appeal.
Master of the Rolls, Sir Geoffrey Vos,has urged lawyers and judges to embrace generative artificial intelligence at the LawtechUK Generative AI event for three reasons. First, the industrial, financial and consumer sectors, which lawyers serve, will be using it “at every level”. Second, lawyers are going to be “at the forefront of AI liability disputes” in the coming years with regard to the negligent or inappropriate use of AI, and if lawyers do not master the capabilities and weaknesses of AI they will not be able to advise clients properly. Finally, it will save time and money and engender greater efficiency. Vos expressed irritation towards those who use “silly examples of bad practice as a reason to shun the entirety of a new technology” and stressed that there is nothing “inherently problematic with AI”. Rather, it is a question of understanding what AI is doing and using it appropriately. Ultimately, for Vos, it is “uncontroversial” that lawyers should be using AI to “promote and improve access to justice and the quality of decision-making”.
In International News
China has unveiled tariffs on the United States in response to the 10% levies that President Trump recently imposed on China. China has justified its retaliatory tariffs by arguing the United States’ levies violated WTO rules, damaging economic and trade cooperation between the two countries. Trump contended that the imposition of Chinese tariffs is a response to trade deficits, and the flow of fentanyl into the US. Whilst Trump postponed the 25% levies imposed on Canada and Mexico for one month, no such postponement measures were enacted in the case of China. The levies have caused significant volatility in the global financial markets. Trump has suggested that he would pursue similar action against the EU but that a deal could be “worked out” with the UK. The UK now needs to decide if it aligns itself with the EU or the US, or neither. If the UK aligns itself more closely on trade with the EU, this will likely entail accepting the EU’s regulations on agriculture and food safety. However, the United States’ standards in such areas differ significantly from those of the EU. If the UK were to adopt EU agricultural standards, this may make a UK-US trade deal much harder given that the US would likely not want an agreement that excludes agriculture. This is at the same as the EU are wrangling with the UK over a closer relationship going forward. Key issues pertain to the youth mobility scheme (a priority for Germany) and an extension to current fishing rights arrangements (a priority for France). In the next few weeks, we may get clarity as to how the UK chooses to position itself between major global trading blocs.
In the Courts
The Court of Appeal has allowed an appeal over whether a local authority which has ‘corporate’ parental responsibility for a child under the age of 16 can consent to the deprivation of their liberty. The case concerns a 14 year old disabled boy known as ‘J’ who is ‘looked after’ under S.20 of the Children Act 1989 and who resides in a specialist children’s home. In J: Local Authority consent to Deprivation of Liberty, Re [2024] EWHC 1690 (Fam), Lieven J held that a local authority could deprive J of his liberty and did not need the court’s approval to do so. This was because the decision the local authority was being asked to make under S.33(3)(b) of the Children Act 1989 was not of “such magnitude” that the Court would need to make it instead. For Lieven J, depriving J of his liberty was “essential to ensuring his best interests” so necessarily fell “within the LA’s statutory powers” under S.33 of the Children Act [34]. All parties in the case felt that the local authority should not deprive J of his liberty without the court’s approval. The interveners (Article 39 and Mind, the Secretary of State for Education and the Children’s Commissioner) also supported court oversight. With a panel comprising the President of the Family Division, Sir Andrew McFarlane, Lady Justice and Lord Justice Singh, the Court of Appeal confirmed the appeal was successful and made a deprivation of liberty order, with full reasons due to be provided at a later date. Consequently, Lieven J’s ruling should not now be followed.
The UK Government introduced its Border Security, Asylum and Immigration Bill to Parliament on 30 January. The Law Society welcomed the Bill’s repeal of the controversial Safety of Rwanda (Asylum and Immigration) Act 2024 – described by Society president Richard Atkinson as ‘one of the most damaging pieces of legislation in recent history’ – and certain provisions of the Illegal Migration Act 2023. However, a number of charities have expressed concern that the Bill’s proposed anti-people-smuggling measures – including the creation of what Home Secretary Yvette Cooper calls ‘counter-terror-style powers’ – will adversely affect legitimate asylum seekers. ‘We are very concerned that by creating new offences, many refugees themselves could also be prosecuted’, wrote the Refugee Council. ‘This would be a gross miscarriage of justice… The most effective way to break the smuggling gangs’ grip is to stop refugees from getting into the boats in the first place, which means giving them a legal way to apply for asylum in the UK.’
This week also saw the Terminally Ill Adults (End of Life) Bill undergo the scrutiny of the Commons General Committee. Lord Sumption, former Justice of the Supreme Court, told the Committee that the Bill’s requirement that those applying for assisted dying would need the approval of a High Court judge as well as two doctors was ‘unnecessary and in some respects undesirable… It is not entirely clear what the judge is supposed to do … Is he there to ensure that the two doctors have done their job… or is he there to form his own view on these matters, completely independently of all those who have given certificates? If the latter, one is talking about quite a time-consuming process, involving a lot of additional evidence. It seems to me this is a protection which no other country, so far that I am aware of among those who have authorised assisted dying, have included.’ The Committee sits again on 11 February.
In international news
Italian Prime Minister Giorgia Meloni is under investigation by her country’s prosecutors for releasing and repatriating Osama al-Masri, a Libyan warlord wanted by the International Criminal Court. The Court issued its arrest warrant for Al-Masri on 18 January, citing his alleged command over a network of prisons in Tripoli, and ‘crimes against humanity and war crimes, including murder, torture, rape and sexual violence, allegedly committed in Libya from February 2015 onwards.’ Al-Masri was arrested by the Italian authorities at a football game in Turin only a day after the warrant’s issue, before his release on 21 January ‘without prior notice or consultation of the Court.’ Meloni’s Interior Minister Matteo Piantedosi, who is now also under investigation, had told the Italian Senate that al-Masri’s deportation was ‘for urgent security reasons, with my expulsion order, in view of the danger posed by the subject.’ It has since been claimed that al-Masri was released on a technicality, following bureaucratic errors made in the course of the suspect’s arrest. These are said to have compelled the Italian court of appeal to refuse to validate his further detention. Al-Masri was then boarded onto a military plane and safely returned to Libya.
In the courts
The Court of Appeal has allowed an appeal brought by two freelance journalists, permitting the disclosure of the names of two family court judges behind historic care proceedings relating to the murdered schoolgirl Sara Sharif. In Louise Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42, Sir Geoffrey Vos MR ruled that Mr Justice Williams had ‘no jurisdiction’ to make a Reporting Restrictions Order anonymising the judges in December last year – save a possible obligation to do so under section 6(1) of the Human Rights Act (HRA) 1998, had it been necessary to avoid an infringement of the European Convention of Human Rights (ECHR).
Sir Geoffrey found that there was ‘no evidential basis’ on which to believe that the threshold for the application of ECHR Articles 2 (right to life), 3 (freedom from torture and inhuman or degrading treatment) or 8 (respect for family and private life) was reached. ‘For the avoidance of doubt, I am not saying that judges are obliged to tolerate any form of abuse or threats… Nor am I saying that it would never be possible for section 6 of the HRA to allow, or even require, a court to consider… an anonymisation order in relation to judges. In my judgment, however, it is very hard to imagine how such a situation could occur.’ It would require: (1) ‘compelling evidence… as to the risks’; (2) the court to be ‘satisfied that those risks could not be adequately addressed by other security measures’; and (3) the court ‘to conclude that the risks were so grave that, exceptionally, they provided a justification for overriding the fundamental principle of open justice.’
It may come as a surprise that there still exists a country or countries in the enlightened West which do not regard sexual intercourse without consent within marriage as rape – or at least sexual assault. After a long campaign in this country, the courts of England and Wales finally capitulated in October 1991, recognising marital rape as a crime in the landmark case of R v R [1991] UKHL 12. In his judgement, Lord Lane confirmed: “The idea that a wife consents in advance [i.e. by being married] to her husband having sexual intercourse with her whatever her state of health or however proper her objections, is no longer acceptable.”
This was a long cry from the position that had held before, best expressed by Justice Henry Hawkins in 1888, that “The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part but is mere submission to an obligation imposed on her by law.”
Now comes a judgement against France that shows that in some pockets of the Council of Europe, the old rule still applies, even if the criminal law has established the possibility of rape within marriage.
The judgment is presently only available in French, so I give a fairly detailed summary below.
Background facts
In July 2015, the applicant sued her husband for divorce on the grounds of fault. She claimed that he had prioritised his professional career over their family life and that he had been irascible, violent and hurtful. Her husband counterclaimed that the divorce be granted on the grounds of the applicant’s exclusive fault, arguing, among other things, that she had failed in her marital duties for several years. Alternatively, he requested a divorce on the grounds of permanent breakdown of the marital relationship. In a judgment of July 2018, the family court judge of the high court considered that none of the spouses’ claims were substantiated and that the divorce could not be granted on the grounds of fault. He granted it on the grounds of permanent breakdown of the marital relationship. The applicant appealed this judgment. In November 2019, the Court of Appeal granted a divorce for fault, the exclusive fault of the applicant, on the grounds that she had acknowledged having ceased all intimate relations with her husband since 2004, which constituted a serious and repeated violation of the duties and obligations of marriage, making the continuation of their life together intolerable. [my italics] The applicant’s appeal on points of law was dismissed in September 2020.
Background law
The divorce was granted pursuant to the relevant articles of the French Civil Code, which provide that a divorce may be granted for fault when facts constituting a serious or repeated breach of the duties and obligations of marriage are attributable to one of the spouses and make the continuation of the common life intolerable. It follows from the long-standing but consistent case law of the Court of Cassation that spouses are bound by a marital duty and that its failure to perform may constitute a fault justifying divorce. Although the high court has not reaffirmed this case law since then, it has never been reversed and continues to be applied by the lower courts. French case law does not consider every refusal to have sexual relations to be wrongful. It leaves it to the lower courts to determine whether this refusal is sufficient to characterise a serious or repeated breach of the duties and obligations of marriage justifying divorce. It also acknowledges that certain circumstances such as the age, state of health or abusive or violent nature of the spouse are such as to justify the failure to perform the marital duty. Domestic law gives trial judges the power to assess whether or not the breach of a matrimonial obligation is serious enough to justify divorce.
In this case the Strasbourg Court upheld the wife’s application, finding a breach of her right to private life under Article 8 of the Convention.
In Episode 213 of Law Pod UK, Alasdair Henderson of 1 Crown Office Row joins Labour MP Henry Tufnell (formerly of 1 Crown Office Row) to discuss some of the salient and problematic proposals in Labour’s most sweeping changes to employment law in decades. They consider the proposed restrictions on zero hours contracts, the radical reduction of the qualifying period for unfair dismissal and that most controversial part of the bill, Clauses 15 and 16, which impose liability on the employer for third party harassment (as defined under the 2010 Equality Act). This goes beyond sexual harassment and could cover situations where for example an entertainment venue books a comedian whose riff, though legal, is maybe offensive to some people. If there are employees who say, we really hate what this comedian’s saying on stage, the Bill may impose a duty on the employer to cancel the comedian; does this not impose a chilling effect on free speech?
Join Ally and Henry for a lively and interesting to and fro on the Bill as it passes through its various Committee and Report stages in the Commons.
Law Pod UK starts 2025 with nearly 950K listens. We aim to inform and enlighten our audience on important developments in civil and public law with a range of guests from 1 Crown Office Row and other legal experts. Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM, ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to your podcasts.
Please remember to rate and review us if you like what you hear.
Axel Rudakubana, who murdered three children at a dance class in Southport earlier this year, pleaded guilty last week and has been sentenced to a minimum of 52 years. He unexpectedly pleaded guilty to all charges last Monday, including weapons and terrorism offences. Mr Justice Goose stated in his sentencing remarks that Rudakubana’s actions had ‘caused such extreme shock and revulsion that it must be seen as the most extreme level of crime’. Given Rudakubana was 17 when the attack occurred, he cannot legally be sentenced to a whole life order (which would mean he could never be considered for release). Despite the chances being very high that Rudakubana will never be released under his current sentence, some believe the sentence is not harsh enough. Southport MP Patrick Hurley has said the sentence is ‘not severe enough’ and does not ‘reflect the crimes committed’. Conservative leader, Kemi Badenoch, has called for the law to be changed so that whole life orders can be imposed on under 18s. However, a spokesperson for Downing Street said that while they ‘share the public’s disgust’, they are ‘restricted in [their] ability to extend whole life orders by UN laws’ – specifically the UN Convention on the Rights of the Child. Rudakubana’s sentence has been referred to the Attorney General, who has 28 days to decide whether to ask the Court of Appeal to reconsider it for being ‘unduly lenient’.
The Joint Committee on Human Rights announced on Friday that it is launching an inquiry into transnational repression in the UK. While acknowledging that there is no universal definition, the Committee stated that transnational repression ‘is generally understood to include instances of intimidation, violence and harassment by a state against people in another state’. Lord Alton, launching the inquiry, said: ‘People from countries around the world come to the UK as a place of safety from repression. It is deeply concerning to hear reports that foreign governments are moving beyond their own national borders to persecute people here’. The inquiry seeks to investigate whether the human rights of immigrants in the UK are being respected by foreign governments, and whether the UK should be doing any more to safeguard them. The inquiry is calling for evidence to be submitted over the coming month.
In Other News
Donald Trump was sworn in last Monday as the 47th president of the United States. On his first day in the White House, he signed multiple executive orders he said in his inaugural speech will lead to the ‘complete restoration of America’. Among the orders were ones providing for the US to leave the World Health Organisation and the Paris Climate Accords, to end birthright citizenship (the guarantee of citizenship to anyone born on US soil), to rename the Gulf of Mexico the Gulf of America, and to create a policy that the US only recognises ‘two genders, male and female’. The American Civil Liberties Union has accused the administration of ‘undoing decades of federal anti-discrimination policy’ with these orders. US District Judge John Coughenour has granted a temporary block on the order ending birthright citizenship on the grounds that it is ‘blatantly unconstitutional’. The executive order and any enforcement measures will now be held for the coming 14 days pending further legal proceedings.
In the Courts
The European Court of Human Rights ruled last week in HW v France that France’s divorce laws, which recognise a refusal to engage in sexual relations as grounds for fault in a divorce, constitutes a violation of Article 8 ECHR – the right to respect for private and family life. The case was brought by a French woman after the divorce, which was granted in 2019 by the Versailles Court of Appeal, attributed fault to her on the basis that not having sex with her husband constituted a ‘serious and repeated breach of marital duties and obligations, making it impossible to continue in a state of matrimony’. In judgment, the ECHR objected to the fact that the concept of ‘marital duties’ recognised in French law pays no attention to the importance of consent to sexual relations. The very existence of this fault-based ground infringed upon the right to sexual freedom and bodily autonomy. The Court could not find any possible justification for the interference with the applicant’s Article 8 rights.
Prince Harry has proclaimed a ‘monumental’ legal win after reaching a settlement moments before his lawsuit against Murdoch newspapers was due to return to court last week. The case alleged that Murdoch’s media group, News Group Newspapers, had carried out unlawful information gathering, the principal allegation concerning the phone hacking scandal that came to light in 2006. Prince Harry’s barrister, David Sherborne, said in a statement read outside of court that ‘News UK is finally held to account for its illegal actions and its blatant disregard for the law’. The settlement includes a specific admission of wrongdoing by The Sun newspaper against Prince Harry; a formal apology was issued and read in court. The apology was said to finally take accountability for wrongdoing against not only the Duke of Sussex, but all the other victims of the information scandal whose cases never reached court.
In Episode 211 of Law Pod UK I am joined by former President of the Supreme Court, Brenda Hale, first female law lord in the Court of Appeal, one time Professor of Law at Manchester University and participant in many Law Commission projects during her nine year sojourn there. She discusses with me the emergence of the English law of privacy from the network of common law torts such as breach of confidence, misuse of private information and libel, in the constellation of cases that reached the courts before the 1998 Human Rights Act ushered in the right to respect to private life and the right to freedom of expression under the European Convention on Human Rights and Freedoms. The balancing act between Article 8 and 10 is not always straightforward, as Lady Hale points out, where different members of the appellate committee have differing views on transparency and confidentiality.
She talks about her years at the Law Commission and her role in the team collaborating with what was then the Department of Health and Social Security to come up with a systematic drawing together of all the different rules about the care and upbringing of children the Children Act 1989. At this point of the discussion, Rosalind and Lady Hale touch upon the novel by Ian McEwan by that very title, The Children Act (2014), which gets Lady Hale’s full endorsement.
The full citations of the cases we discuss are set out below.
Kaye v Robertson [1991] FSR 62
Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22
Patel v Mirza [2016] UKSC 42 (general principles of illegality)
Law Pod UK starts 2025 with nearly 950K listens. We aim to inform and enlighten our audience on important developments in civil and public law with a range of guests from 1 Crown Office Row and other legal experts. Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM, ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to your podcasts.
Please remember to rate and review us if you like what you hear.
A heated debate has arisen across the UK and abroad after Safeguarding Minister Jess Phillips last week rejected calls for a public inquiry into child grooming gangs in Oldham. In a letter sent to Oldham Council in response to its request for a public inquiry, Phillips stated it was for “Oldham Council alone to decide whether to commission an inquiry into child sexual exploitation locally, rather than for the Government to intervene”. The decision has led to widespread criticism, with Shadow Justice Secretary Robert Jenrick calling it “shameful” and Elon Musk arguing that Phillips “deserves to be in prison”. Reform UK leader, Nigel Farage, has defended Musk’s involvement as an exercise in “free speech”. Professor Alexis Jay, former Chair of the Independent Inquiry into Child Sexual Abuse (IICSA), has suggested that it is change that is needed rather than a fresh inquiry. A statement published on Sunday by campaign group Act on IICSA warned against the politicisation of sexual violence, which only “hinders the implementation of vital and urgent overhaul” to existing systems. In a press conference on Monday, Sir Keir Starmer defended Jess Phillips and his own record as Director of Public Prosecutions, accusing critics of “spreading lies and misinformation” and of being interested in themselves rather than the victims.
Former President of the Supreme Court, Lord Neuberger, has warned that legal aid cuts in family cases are denying parents their human rights, stating that the cuts are “wrong in principle”. Following legislative changes in 2013, parents in private children’s law cases are unable to access legal aid – irrespective of their means – unless abuse is alleged. In an exclusive interview with the Guardian, Neuberger called it “almost disgraceful” that parents are given human rights and then denied the ability to enforce them as a result of the lack of legal aid. “Rights aren’t meaningful unless they can be enforced”, he added. A Ministry of Justice spokesperson responded to Neuberger’s position by emphasising the importance of families getting the “best outcomes as quickly as possible”, pointing to the mediation scheme available for family disputes which is partially Government funded.
In Other News
The latest report published by HRMMU, the UN team investigating human rights in Ukraine, details the deteriorating situation in the region with a surge in monthly civilian casualties and allegations of executions of Ukrainian Servicepersons. Evidence continues to suggest that individuals being held as Prisoners of War (POWs) are suffering torture and ill-treatment, including sexual violence. While the report acknowledges mistreatment of Russian POWs, these instances are said to appear more “isolated” than that of Ukrainians. As the war rages on nearly three years after the Russian invasion, the report calls for both countries to “intensify” their efforts to uphold international human rights law. The report was published just days before Ukraine launched a renewed offensive in Russia’s Kursk region on Sunday, leaving Russian civilians “shaken”.
Ireland’s landmark hate crime law – the Criminal Justice (Hate Offences) Act 2024 – came into force last week, marking a historic moment in Irish law regarding the treatment of hate-motivated offences. The new law prescribes increased prison sentences where hatred predicated upon real or perceived protected identity characteristics either motivates a crime or is demonstrated during it. Ireland Justice Minister Helen McEntee said last Tuesday that the “legislation meets a clear gap in [Irish] laws and is widely supported by the public”, bringing Ireland out of the small group of EU countries that continue not to have specific hate crime offences set out in law. The bill had originally also contained provisions tightening the laws around hate speech, but this section was dropped in October after McEntee revealed there was no longer a “consensus” on its inclusion. The law around hate speech in Ireland is governed by the Prohibition of Incitement to Hatred Act 1989, which remains in force.
Activists are celebrating the inclusion of measures in the 2025 National Defence Authorisation Act (the annual US defence spending bill) to address the oppression of the Uyghur Muslim population in China’s Xinjiang region, which the US has labelled genocide. The bill was signed into law by President Joe Biden shortly before Christmas and incorporates the bipartisan Uyghur Human Rights Policy Reauthorisation Act 2024 which extended the Uyghur Human Rights Policy Act passed under Trump in 2020. The Act greenlights sanctions against Chinese officials believed to be involved in Uyghur oppression. The renewal of these sanctions has been welcomed by the Uyghur Human Rights Project, with UHRP Executive Director Omer Kanat calling it “a gift of hope for Uyghurs”. The move represents the latest show of continued support for the Uyghur population by the United States.
In the Courts
On Sunday, the Criminal Division of the Seoul Western District Court rejected objections made by Yoon Suk Yeol, suspended President of South Korea, against the execution of arrest and search warrants against him. Yoon has been suspended as President pending impeachment proceedings following a failed attempt in December to impose martial law. Anti-corruption investigators issued the arrest warrant for Yoon and a search warrant for the Presidential residence after the suspended President ignored multiple summons for questioning. Yoon’s legal team filed an objection to the warrants in the courts last Thursday, arguing that they were illegal on the basis that the investigators did not have jurisdiction to issue them, and that, in any case, a criminal law prohibiting the execution of warrants in military areas should apply in his case. It has not yet been revealed on what grounds the court has rejected his arguments, and it is expected that a re-appeal may be lodged with the Supreme Court once this is clear. In the meantime, the Presidential Security Team are taking measures to block Yoon’s arrest, installing barbed wire and barricading the compound where he is residing. The arrest warrant expired at midnight on Monday January 6th with Yoon successful in defying arrest, although investigators are seeking an extension of the warrant’s deadline.
(Jeremy Hyam KC and Alasdair Henderson of 1 Crown Office Row represented the mother in this case)
This was an appeal from a decision in the Divisional Court by Judd J in April 2024. The case raises a question at the core of the transgender debate involving young people: consent.
The young person at the centre of this litigation is now 16 years old. He was born female and started to identify as male in 2020 at the age of about 12.
His parents were estranged. In these circumstances his mother appealed against the refusal of her request for an adjournment of proceedings in which she sought a prohibited steps order and a best interests declaration in relation to her child, pending an assessment being undertaken by a private gender dysphoria clinic (Gender Plus), the first private gender dysphoria hormone clinic in the UK.
It was accepted that, now the young person was by now 16, no Gillick competence question arose (see Sir James Munby at [55] in An NHS Trust v. X [2021] EWHC 65 (Fam), [2021] 4 WLR 11, and MacDonald J at [48]-[49] in GK and LK v. EE [2023] EWCOP 49). It was also accepted that the young person was “impressive, hardworking and intelligent” and had no mental health problems.
Puberty Blockers and Cross-Sex Hormones: Policy Background
As Vos MR noted, a number of events coalesced to make this case a particularly sensitive one at the time of this appeal.
(i) the Cass Interim Review in 2022 led to the closure of the Tavistock clinic that had been in issue in Bell v. Tavistock;
(ii) on 12 March 2024, NHS England published a clinical policy concluding that there was not enough evidence to support the safety or clinical effectiveness of puberty blockers to make the treatment routinely available (outside a research protocol);
(iii) as the first instance judge recorded at [58], NHS Scotland had announced before the hearing that persons under 18 would not be prescribed cross-sex hormones;
(iv) on 21 March 2023, NHS England published a clinical commissioning policy laying down stringent eligibility and readiness requirements to be met before cross-sex hormones could be administered to those over 16;
(v) on 9 April 2024, NHS England wrote to all NHS gender dysphoria clinics asking them to defer offering first appointments to those under 18 “as an immediate response to Dr Cass’s advice that ‘extreme caution’ should be exercised before making a recommendation for [cross-sex hormones] in [children]”;
(vi) on 10 April 2024, the Cass Review was published*; and
(vii) on 11 December 2024 (the day before the hearing before the Court of Appeal), the government announced that the temporary embargo on the use of puberty blockers would be made indefinite (subject to a review in 2027).
* For the purposes of this case, the mother highlighted that the Cass Review had called into question the quality of the evidence on which hormone treatments for adolescents are based. Dr Cass says at page 13, for example, that “[t]he reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress”. Moreover, Dr Cass highlights new evidence about brain maturation continuing into the mid-20s, whilst it was originally thought to finish in adolescence. Dr Cass recommended that puberty blockers should only be available within a research protocol, and that recommendation has now been implemented.
The judge at first instance had said first that, whilst the findings of the Cass Review might turn out to be very significant, she did not think they justified her departure from Bell v. Tavistock and from Lieven J’s decision in AB v. CD and Tavistock [2021] EWHC 741 (Fam) (AB v. CD), which the Court of Appeal approved in Bell v. Tavistock.
Arguments before the Court
The father sought to terminate the proceedings begun by the mother on the ground that they were causing the young person significant distress. The mother contended that the proceedings should be adjourned because the legal and regulatory landscape for gender dysphoria treatment was changing rapidly; the Cass review had only been published a week before the hearing before the judge; and Gender Plus was a private provider whose practices and procedures were diverging from the NHS approach. In these circumstances, it behoved the court to keep an eye on a case of this kind in a time of flux. The mother also argued, though not strenuously, that cases concerning treatment for gender dysphoria should be regarded as being in in a special category requiring judicial oversight wherever there was less than complete unanimity. If necessary, the mother submitted that the Court of Appeal should depart from its recent decision in R (Bell) v. Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All ER 416.
The judge below had concluded that, while the Cass review might be significant, it did not justify a departure from the decision in Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All E.R. 416, [2021] 9 WLUK 157, in which it was held that treatment with puberty blockers should not be distinguished from the consideration of contraception in Gillick, and that questions of Gillick competence were for doctors, not the courts. Judd J held there was no realistic basis upon which to override the young person’s consent to treatment by a regulated provider and that there was no legitimate purpose in adjourning the case.
Join Rosalind English in Episode 211 as she discusses with Lucy McCann and Jonathan Metzer of 1 Crown Office Row the cases that have been decided at all levels in the courts in 2024 that have had, or will have, important implications for practitioners and litigants in fields ranging from children in care through anonymity in medical negligence to the forfeiture of property under the Suicide Act 1961 in the light of the passage of the Assisted Dying Bill. The cases we talk about include the following:
HXA v Surrey County Council [2023] UKSC 52 (abuse, failure to remove and Article 3)
AB (by the Official Solicitor) v Worcestershire County Council and Anor [2023] EWCA Civ 529 (local authority liability under Article 3)
Sammut v Next Steps Mental Healthcare Ltd [2024] EWHC 2265 (KB) (inquests, Article 2 and private care homes)
PMC v A Local Health Board [2024] EWHC 2969 (KB) (anonymisation in clinical negligence cases)
Abbasi and Haastrup (conjoined cases) [2023] EWCA Civ 331 (reporting restriction orders, anonymisation of professionals in medical treatment cases)
Paul v Wolverhampton NHS Trust [2022] EWCA Civ 12 (psychiatric injury or “nervous shock)
Tindall & Anor v Chief Constable of Thames Valley Police [2024] UKSC 33 (23 October 2024) (police Liability)
N v Poole Borough Council [2019] UKSC 25 (duty of care of public authorities)
Philip Morris v James Morris, Kate Shmuel and Gregory White [2024] EWHC 2554 (Ch) (assisted dying and the Forfeiture Act)
McKleenon, re Application for Judicial Review (Northern Ireland) 2024 UKSC 31 (judicial review and remedies)AB
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Health Secretary Wes Streeting revealed last week that the Government has placed an indefinite ban on the use of puberty blockers for trans youth, following advice from the Commission on Human Medicines that the medicines pose an ‘unacceptable safety risk’. The ban also follows the recommendations of the recent Cass Review, which was heavily criticised by rights groups. Speaking to the Commons on Wednesday, Streeting stressed that he was ‘determined’ to improve healthcare for trans youth. However, the ban has come under fire from a wide range of rights groups, educational psychologists, clinicians, and members of the British Medical Association. This news comes the same week that the Montana Supreme Court temporarily lifted the state’s ban on puberty blockers while its lawfulness is considered in the courts.
The Government announced last week that £75 million has been made available to compensate LGBT veterans who were affected by the historic ban on LGBT personnel in the Armed Forces. Veterans who were dismissed or discharged as a result of their LGBT identity, real or perceived, will also be able to apply to have their rank restored or discharge reason amended. The announcement represents a major step in the implementation of the recommendations made by the Etherton Review, which looked into the ill treatment of LGBT veterans in the past. Secretary for Defence, John Healey, has called the historic treatment of LGBT veterans a ‘moral stain on our nation’ and expressed his commitment to ‘righting the wrongs of the past’.
A report published by the Women and Equalities Committee this week has found that ‘medical misogyny’ is contributing to the underdiagnosis of serious reproductive health conditions, with women having their painful symptoms ‘normalised’ and ‘dismissed’. The report is critical of the speed of progress following the establishment of the Women’s Health Strategy in 2022, stating that implementation has been slow and incomplete. Chair of the Women and Equalities Committee, Sarah Owen, stated that women are “waiting years for life-changing treatment and in too many cases are being put through trauma-inducing procedures”. “All the while, their conditions worsen and become more complicated to treat”. The report “must act as a wake-up call” for the NHS, she added.
In Other News
The Assad regime, a hereditary totalitarian regime which has governed Syria since 1971, collapsed last week as Damascus was captured by opposition forces. Broadcasting on Syrian national television, the rebels announced at dawn on December 8th that the “tyrant al-Assad” had been “toppled”. It has been reported that Bashar al-Assad has fled to Russia, where he has been granted asylum on ‘humanitarian grounds’. The UN Secretary-General, Antonio Guterres, released a statement celebrating that “after 14 years of brutal war and the fall of the dictatorial regime, today the people of Syria can seize an historic opportunity to build a stable and peaceful future”. Burcu Ozcelik, senior research fellow at London think tank Royal United Services Institute, has said there while there was ‘undoubtedly justified optimism in Syria’ at the news, it is ‘simultaneously true that Syria remains fragile and faces an uncertain future’. Since the overthrow, Israel has intensified airstrikes on Syria and invaded the demilitarised buffer zone between Syria and the Israeli-occupied Golan Heights. The UN has responded stating it is “deeply concerned by the recent and extensive violations of Syria’s sovereignty and territorial integrity.”
The MPs who thwarted the declaration of marshal law by South Korea President Yoon Suk Yeol in early December have now voted for his impeachment. The imposition of martial law was said to be necessary to protect the country from “anti-state forces” and the North Korean threat. Within two hours, MPs forcibly entered the National Assembly to vote against the declaration – with the Parliament’s speaker telling the BBC he climbed over a wall to gain entry so he could ‘protect democracy’. Large crowds gathered in Seoul as the impeachment vote took place, with police revealing they expected as many as 200,000 protestors. In a televised address, Yoon insisted that he will fight “until the end” to defend his “act of governance” in imposing martial law.
This was not a class action but a representative action, pursuant to what is now Civil Procedure Rule (CPR) 19.8, for the tort of misuse of private information against the respondents Google UK Limited (Google) and DeepMind Technologies Limited (DeepMind). The action was on behalf of Mr Prismall and a class of persons said to number approximately 1.6 million.
The appeal was against the striking out of his representative claim for misuse of private information in the court below. In a representative action like this the task before the judge is to establish whether the “lowest common denominator” claimant in the class would fail to make their claim. The judge found that the lowest common denominator claimant in the group of persons represented did not have a realistic prospect of success.
Details of the Case
The claim was for damages in respect of both the one-off transfer by the Royal Free London NHS Foundation Trust (the Royal Free Trust) of data in October 2015, and the continuing transfer of data thereafter until 29 September 2017 pursuant to a live data feed. The data which was transferred took the form of patient-identifiable medical records held by the Royal Free Trust of patients, including Mr Prismall, who had attended hospitals in the Royal Free Trust or had blood tests processed by laboratories operated by the Royal Free Trust between 29 September 2010 and 29 September 2015. Google and DeepMind used the data for the purposes of developing an app called “Streams” which was intended to be used to identify and treat patients suffering from Acute Kidney Injury. Google and DeepMind also had, however, a contractual entitlement to use the data for purposes wider than direct patient care and to develop and prove capabilities to enhance future commercial prospects.
At first instance the judge found that each member of the class did not have a realistic prospect of establishing a reasonable expectation of privacy in respect of their medical records or of crossing the de minimis threshold in relation to such an expectation such that there was no realistic prospect of establishing misuse of private information of each member of the class, or a realistic prospect of establishing an entitlement to damages for loss of control. The lowest common denominator was a notional claimant in the class whose claim represented the “irreducible minimum scenario” for a claimant in the class of persons. The judge’s lowest common denominator claimant was premised on the basis that there was one attendance at a trust hospital, which was an attendance not concerning “a medical condition involving any particular sensitivity or stigma” and there being “no specific reference to the medical condition that had prompted the attendance”. The judge had identified for the irreducible minimum scenario for the lowest denominator claimant that “no upset or concern was caused by the data transfer”. The judge found that the lowest common denominator claimant’s claim would fail.
Grounds of claim
Mr Prismall’s claim related to the wrongful use of private patient information by Google and DeepMind in: (1) obtaining patient-identifiable medical records with a contractual entitlement under the Information Sharing Agreement which was wider than direct patient care and the Streams project;
(2) storing the medical records prior to Streams becoming operational;
(3) using the medical records in the research and development of Streams; and
(4) developing and providing their general capabilities by the use of the medical records for the purposes of future commercial prospects. Damages were claimed for loss of control of the private information only.
The judge said that it was “also well-established that not every disclosure of medical information will give rise to a reasonable expectation of privacy and/or involve an unlawful interference.” If anodyne or trivial information about a brief hospital visit was made public by a patient, the judge saw no reason why that information would attract a reasonable expectation of privacy by dint of it being recorded in a medical record.
In Episode 209, Jim Duffy is joined by fellow 1COR barristers Alasdair Henderson and Paula Kelly to examine recent judicial attempts to grapple with questions of gender in the workplace. How do the UK courts and tribunals distinguish legitimate and protected expressions of belief from harassment and transphobia?
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