Category: BLOG POSTS
9 April 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
The High Court, Court of Appeal and Supreme Court are not sitting at present (Easter Term will begin on Tuesday 10th April). Accordingly, this week’s Round Up focuses largely on the ECHR.
Credit: The Guardian
Correia De Matos v. Portugal
This week, the ECHR held that requiring defendants to have legal representation does not violate Article 6. The vote was split by nine votes to eight.
The applicant, a lawyer by training, alleged a violation of Article 6 s.3(c) of the Convention. This was on the basis of a decision by Portuguese domestic courts which (i) refused him leave to conduct his own defence in criminal proceedings against him, and (ii) required that he be represented by a lawyer.
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3 April 2018 by Guest Contributor
On 28th March 2018 a three-judge panel of the Divisional Court gave its decision in R (DSD and Ors) v The Parole Board of England and Wales [2018] EWHC 694 (Admin), ruling that the Parole Board’s decision to direct the release of John Worboys (the ‘black cab rapist’) should be quashed.
Background
On 21st April 2009, John Worboys (now under the name of John Radford) was convicted of 19 serious sexual offences, including rape and sexual assault, which were committed on victims aged between 19 and 33 between October 2006 and February 2008. He was given an indeterminate sentence for public protection – specifying a minimum term of imprisonment of 8 years after which Worboys would be eligible for release if the Parole Board was satisfied that it was no longer necessary for the protection of the public for him to be held in prison.
On 26th December 2017, the Parole Board determined that incarceration was no longer necessary and directed for Worboys to be released. After much public outcry, the decision was challenged by the Mayor of London, two victims and, on a discrete aspect of the decision, a media group.
A decision to release a prisoner by the Parole Board had never been the subject of judicial review before. This is because the only parties to a hearing before the Parole Board are the Secretary of State for Justice, the Parole Board themselves and the prisoner. The proceedings are held entirely in private. To that extent, unless the Secretary of State for Justice intervened to seek judicial review of a decision by another government body, the decision was effectively unchallengeable.
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2 April 2018 by Eleanor Leydon
Image Credit: Guardian
R (On the application of) DSD and NBV & Ors v The Parole Board of England and Wales & Ors & John Radford: in a landmark ruling, the High Court has quashed the Parole Board’s decision to release black cab driver and serial sex offender John Worboys, on grounds of irrationality. The Board acted irrationally in that it “should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability” [201].
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2 April 2018 by Rosalind English
Goldscheider v The Royal Opera House [2018] EWHC 687 (QB) – read judgment
The ROH has been found liable for failing to protect the hearing of its musicians and for causing acoustic shock to former viola player Chris Goldscheider. This is the first time a musical institution has been found responsible for damage to the hearing of musicians, and the first time that acoustic shock as been recognised as an injury sounding in damages. As the Media release on the judgement observed,
The decision leaves insurers for the ROH responsible for a £750,000 compensation claim, and legal costs in addition, an urgent need to re-think its policies and procedures, a possible re-design of “The Pit”, and probably claims against them by other musicians.
But the issues in this judgment were limited to breach of duty and causation of the claimant’s injury, with damages to be assessed later.
Mr Goldscheider said he had sustained acoustic shock during the course of his employment at the ROH on Saturday 1 September 2012 when the orchestra was in the pit rehearsing Wagner’s ‘Die Walküre’. As a result of the way that the conductor arranged the orchestra, the Claimant was positioned immediately in front of a group of about 18 to 20 brass players.
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28 March 2018 by Guest Contributor
David Seymour is a New Zealand MP sponsoring a Bill in support of assisted dying.
Our liberal history can be briefly sketched out in two stages. Establishing a bundle of rights and then expanding them to include a wider range of people. In one sense, the right to assisted dying is a continuation of this movement and perhaps its final chapter.
In dark ages past people had few dimensions of freedom and little self-expression. Most people had one option for spiritual thinking with severe penalties for deviance. As for choice in sexuality, the electoral franchise, freedom of speech, unless you fitted in exactly the right box, forget it.
In my maiden speech to parliament, I borrowed heavily from AC Grayling’s excellent Towards the Light of Liberty where from the Inquisition to the Reformation through the abolition of slavery, the liberation of women and expansion of the franchise, the black civil rights movement and finally the LGBTI movement, the sphere of liberty was expanded and then eventually included all people.
The British Commonwealth has long been an important institution for advancing these liberties. The Treaty of Waitangi, which established ‘the same rights and duties as citizens of England’ for all New Zealanders, was an extraordinary document for colonial times marred by arrogance and violence by colonisers. Today, the Commonwealth Charter sets out an admirable set of values that would make the world a better place if only they were universally followed. They include access to health: voluntary euthanasia is merely consistent with this value.
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26 March 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The consultancy company Cambridge Analytica has come under fierce criticism for its treatment of Facebook users’ data. A whistle-blower, Christopher Wylie, alleged that Cambridge Analytica had gathered large amounts of data through a personality quiz, posted in Facebook, called ‘This is Your Digital Life’. Users were told the quiz was collecting data for research.
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26 March 2018 by Dominic Ruck Keene
In Secretary of State for the Home Department v Sergei Skripal [2018] EWCOP 6, Mr Justice Williams made a best interests decision that blood samples could be taken by the Organisation for the Prohibition of Chemical Weapons from Sergei and Yulia Skirpal in order that the Organisation for the Prohibition of Chemical Weapons (OCPW) could undertake their own analysis to find evidence of possible nerve agents. Both Sergei and Yulia were and remain unconscious and in a critical condition, and were unable to consent to such blood samples being taken.
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23 March 2018 by Rosalind English
We have posted two new episodes of Law Pod UK today.
Episodes 25 and 27 feature extracts from the seminar given by 1 Crown Office Row in February 2018 on the lessons learned from the Paterson litigation. These are free and available for download.
Episode 26 Law Pod UK: Hannah Noyce discusses vicarious liability in private hospitals and clinics
Episode 27 Law Pod UK: Dominic Ruck Keene summarises non-delegable duty in private hospitals and clinics
Seminar handout
Subscribe to Law Pod UK on iTunes or on Audioboom.
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23 March 2018 by Rosalind English
Dryden and Others v Johnson Matthey [2018] UKSC 18 – read judgment
We are all made of stuff, and that stuff is not inert because it’s organic matter. Changes at the molecular level happen all the time, through cell death and replenishment, growth and the constant attrition caused by cosmic radiation on our DNA. Other changes are wrought by the environment or other organisms. Some changes are beneficial, even life saving, such as the removal of an appendix or the insertion of a pacemaker. The production of antibodies by vaccination have eradicated many diseases. Most of the time the body manages this itself. Every time certain cells in the blood encounter a foreign invader, they recruit the immune system to come up with a focussed weapon. This is an antibody, which lies dormant until the threat (the antigen) arises again. Antibodies are good things to have around until they’re provoked by enemies akin to the ones that created them, whereupon the body produces an allergic reaction to get rid of the toxin/allergen.
So, does the triggering of an antibody (an immunoglobulin molecule) constitute tortious injury, sounding in damages? This is the question raised by this case, and it goes to the heart of what “injury” is for the purposes of the law.
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19 March 2018 by Guest Contributor
New legislation significantly curtails accommodation provision for those seeking release from immigration detention. The likely result is more and more people being held in immigration detention.
The fight to end to indefinite detention of immigrants pending their removal from the UK has been gathering momentum. There have been parliamentary debates and expert reports, all critical of the Home Office policy of what effectively involves ‘warehousing’ immigrants in cramped and often unsafe conditions with no end in sight.
While there is no legal maximum for how long someone can be held in immigration detention, the Home Office can only use their power to detain if they intend to remove the person and can do so ‘within a reasonable period’. If at the outset it is apparent that the person cannot be removed within a reasonable period they should not be detained at all. If it becomes apparent once detention has commenced that the person cannot be removed within a reasonable period, then the person should also be released. In addition, the Home Office should exercise appropriate diligence in their efforts to remove the person.
Despite these well-established restrictions on the power to detain, men and women are still held in detention centres for extended periods of time. In March 2018, a report by HM Inspectorate of Prisons of Harmondsworth Immigration Removal Centre found that 23 men had been held for over year, and one man had been held for four years.
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19 March 2018 by Eleanor Leydon
Image credit: Guardian
DA & Orss, R (On the Application Of) v The Secretary of State for Work and Pensions: The Court of Appeal by a 2:1 majority allowed the government’s appeal against a ruling that their benefits cap unlawfully discriminated against lone parents with children under the age of two.
Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle [135]. He concluded:
the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.
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18 March 2018 by Rosalind English
Moylett v Geldoff and Another (unreported) Chancery Division (Carr J) 14 March 2018
Music nerds may remember with fondness the great copyright wrangle involving Procul Harum and Bach. The focus of that dispute was the organ line in the 1967 hit Whiter Shade of Pale, and Blackburne J’s judgment is imperative reading for anyone interested in the law’s dominion over music, ideas or intellectual property in general. Go to the end of this post for a reminder of that entertaining litigation and its outcome.
Less esoteric but potentially as interesting is this application brought before Carr J in the Chancery Division by the “well known music band”, the Boomtown Rats.
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15 March 2018 by Rosalind English
In our continuing reposts of Professor Catherine Barnard’s series on the legal steps to Brexit, we have reposted her episode on the Draft EU Withdrawal Agreement – the Brexit political agreement turned into a legal document. Professor Barnard gives Boni Sones her own analysis of the text.
Listen to Episode 25 of Law Pod UK now.
Law Pod UK is available for free download on iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast.
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11 March 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
Photo credit: The Guardian
In the News:
Over 100 female detainees have gone on hunger strike at Yarl’s Wood Immigration Removal Centre.
The women began their strike on the 21st February, over “inhuman” conditions, indefinite detentions, and a perceived failure to address their medical needs. The UK is the only European state that does not put a time limit on how long detainees can be held.
This week, the strikers were given a letter from the Home Office warning their actions may speed up their deportation. Labour criticised the letter, but Caroline Nokes, the Immigration Minister, said the letter was part of official Home Officer guidance and was published last November on its website.
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8 March 2018 by Guest Contributor
Josh Newmark is a History and Politics graduate from Durham University and an incoming History MSc at the University of Edinburgh, currently teaching in Salamanca. He is part of the youth-led #DontSettleForThis campaign with Yachad, the pro-Israel, pro-peace movement in the UK.
The security of a roof over one’s head, a space for personal and familial privacy… Having “a place to call home” is widely recognised as an essential prerequisite for human wellbeing. This is acknowledged across the political spectrum – from the phrase “property-owning democracy” shared by both Thatcherites and American liberal philosopher John Rawls, to left-wing movements for affordable housing. In Judaism, too, the value of having a home is recognised. A key aspect of Judaism’s story is learning from the experience of being a people in exile, yearning for a home – “love the stranger, for we were once strangers in Egypt” is a frequent refrain in the Torah. Moreover, the Jewish household is of central importance to Jewish life – with its important physical features, like the mezuzah (boxed prayer scroll attached to each door frame), and key practical functions, such as hosting the traditional Friday night family meal to welcome the Sabbath. Undoubtedly, this is one of the motivating factors for young British Jews’ repugnance towards the Israeli’s government continuing policy of demolishing Palestinian homes.
Yachad is a British Jewish NGO which promotes support for a political solution to the Israeli-Palestinian conflict within the Jewish community through education, debate, and advocacy. Under the hashtag #DontSettleForThis, young Yachad activists are raising awareness within the Jewish community of the demolitions of Palestinian homes, and pushing the UK government to help prevent these demolitions.
According to Israeli humans rights NGO B’Tselem, Israel has demolished at least 1,323 Palestinian residential units in the occupied West Bank, plus over 600 just in East Jerusalem, since 2006. This policy has taken homes from over 8,000 people in that time period, more than 50% of them minors. These figures exclude the demolitions which Israel controversially carries out upon the family homes of convicted or deceased terrorists. Rather, these are homes which are being demolished because they have been built without permits. While demolishing such structures might seem to be the right, even obligation, of a governing authority, only a little detail is necessary to make clear that this policy is an inflammatory and unjust policy which compounds the wider injustice of the occupation itself. The dual policy of allowing and stoking a Palestinian housing shortage whilst allocating land for well-planned, well-connected illegal Israeli settlements, often with illegal (even under Israeli law) structures tolerated on them, highlights the deep inequality inherent in the occupation.
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