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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?
This was a very simple case that illustrates in a nutshell the courts’ approach to the principle of “ex turpi causa”: the notion that prevents a claimant from seeking a legal remedy if the claim arises in connection with their own illegal or immoral act. Even in a civil case, courts are reluctant to allow a party to benefit from their own wrongdoing, as it may be seen as contrary to the interests of justice and social morals. However, it cannot be a blanket rule, as we shall see from the case below. Proportionality has to to be applied.
This concerned an RTA leading to a claim for damages by the claimant for repair to his car after the defendant negligently drove his lorry into it whilst it was parked.
A small and mundane detail could have made all the difference to the outcome. The claimant had not renewed the MOT on his car for some months before the accident, so that the defendant pleaded that the the claimant’s argument that he needed to be reimbursed for the car he had to hire after his car had been damaged meant that he had had no insurance at the time of the accident, and that the claim should fall as being ex turpi causa (Agheampong v Allied Manufacturing (London) Ltd [2009] Lloyds Rep IR 379.)
Furthermore, and as the next logical step, the defendant asserted that, because there was no valid MOT certificate for the Volvo, the claimant had suffered no compensable loss when the Volvo was rendered unroadworthy by the defendant’s tort. This was called a “causation defence”.
The Terminally Ill Adults (End of Life) Bill passed its second reading debate on 29 November 2024. The current draft of the bill is available here. The dates for the Committee Stage have not yet been announced. Supporters of the bill point out that the bill is limited to allowing assisted dying only for adults with mental capacity who have a terminal illness and can be reasonably expected to die within six months and has a range of safeguards. The process to request assistance requires the approval of two doctors (independent of each other) and a High Court judge. THe bill also creates an offence of dishonesty, coercion and pressure to protect vulnerable people from inappropriate pressures. However, critics of the bill cast doubt on the safeguards, arguing that people can shop around for doctors and that there are not enough High Court judges to provide sufficient scrutiny of applications. There are also continuing debates regarding whether the bill creates a “slippery slope” allowing assisted dying to be available to more people in the future (for example here and here).
In the courts The European Court of Human Rights (ECtHR) has published a judgment that could have wide ranging impacts on states obligations with respect to protection for LGBTQ asylum-seekers. MI is a gay man from Iran who was facing threats from his relatives due to his sexual orientation. He was denied asylum in Switzerland with the Federal Administrative Court holding that while homosexuality is a criminal offence in Iran, in practice convictions are rare. The Federal Administrative Court held that MI’s sexual orientation was not widely known and so he would be safe in Iran provided that he lived “a life of discretion”. The ECtHR held that the Swiss authorities incorrectly determined that MI faced no real risk of ill-treatment because it was unlikely that MI’s sexual orientation would become known to the Iranian authorities. Further, the Swiss authorities failed to carry out the necessary assessment of the availability of state protection against harm caused by non-state actors (in this case MI’s relatives). The ECtHR went on to hold that it would be unreasonable to expect an LGBTQ person to seek protection from the Iranian authorities.
In SAG & Ors v Secretary of State for the Home Department [2024] EWHC 2984 (Admin), the High Court considered challenges to the Secretary of State’s determination of applications to remove no recourse to public funds (“NRPF”) conditions placed on the Claimants’ leave to remain. Each Claimant’s position was that they were at imminent risk of destitution. Several grounds of challenge were advanced:
1. The approach to the NRPF conditions was unlawful under common law
2. The approach to the NRPF conditions was a breach of s.55 of the Borders, Citizenship and Immigration Act 2009.
3. The approach to the NRPF conditions was incompatible with the Human Rights Act 1998 read with Article 3 of the European Convention of Human Rights.
This article considers the third ground of challenge under the Human Rights Act 1998.
Following the recent allegations of abuse surrounding former owner of Harrods, Mohamed Al-Fayed, vicarious liability has been in the news once again.
In Episode 208, Emma-Louise Fenelon speaks to Isabel McArdle about developments in this area of law since her previous episode with Rob Kellar KC in 2020 and in particular since the Supreme Court decision in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15
US President Joe Biden agreed last week to provide Ukraine with anti-personnel land mines as part of their 70th military aid package to Ukraine. The decision represents a significant departure from the Biden-Harris Administration’s 2022 policy which committed to limiting the use of landmines on the grounds that the weapons have a ‘disproportionate impact on civilians, including children, long after fighting has stopped’. Ukrainian president Volodymyr Zelenskyy expressed his gratitude to the US in a video address last Wednesday, stating that the ‘essential’ mines will ‘significantly strengthen troops on the front line’. However, the decision has been met with widespread concern. The International Campaign to Ban Landmines has condemned the decision as ‘unconscionable’, expressing that the ‘human cost of this decision cannot be overstated. Ukraine already faces decades of demining work due to extensive Russian landmine use. Adding new mines to this contamination will only extend the suffering of civilians and complicate post-conflict recovery efforts’.
Uganda opposition leader Kizza Besigye appeared in military court this week after disappearing on November 16th in Kenya’s capital, Nairobi. Last Wednesday, it transpired that he was being held in Ugandan military custody when he appeared before the court charged with national security offences and unlawful possession of firearms. Winnie Byanyima, Besigye’s wife and human rights activist, said in a post on X that Besigye ‘has not owned a gun in the last 20 years’, and, as a civilian, ‘should be tried in a civilian court not a military court’. Human Rights Watch have stated that this is only the ‘latest example of Uganda’s authorities misusing military courts and military-related charges to clamp down on the opposition’. UN Human Rights Chief Volker Turk has released a statement expressing his ‘shock’ at the ‘abduction’ and the ‘deeply concerning practice in Uganda of prosecuting civilians in military courts, in contravention of the country’s obligations under international human rights law’.
In the Courts
On Thursday, the International Criminal Court (ICC) announced its decision to issue warrants of arrest for Israeli Prime Minister Benjamin Netanyahu and Former Defence Minister Yoav Gallant, alongside Mohammed Deif, Hamas military leader whom Israel claim was killed earlier this year. The decision comes after the dismissal of two challenges launched by Israel disputing the Court’s jurisdiction. The warrants against Netanyahu and Gallant are issued after the Chamber found ‘reasonable grounds’ to believe the individuals bear criminal responsibility for alleged ‘crimes against humanity and war crimes’. Netanyahu responded later on Thursday to the news of a warrant being issued against him, claiming that the ICC’s warrant is based on ‘false’ accusations made by ‘biased judges who are motivated by antisemitic sentiments against the one and only Jewish state’, and that ‘no war is more just than the war that Israel has been waging in Gaza’. US President Joe Biden has called the decision ‘outrageous’, stating that ‘whatever the ICC might imply, there is no equivalence — none — between Israel and Hamas’. Downing Street, though declining to comment on the specific case, has indicated that it will fulfil its ‘legal obligations’ as imposed under international law. Home Secretary Yvette Cooper, speaking to Sky News, added that it is ‘not really a question of should; we are required to because we are members of the ICC.’
A Wyoming Judge on Monday struck down the State’s ban on abortion – including its explicit ban on abortion pills – following a legal challenge brought by a group of women and non-profit organisations. Melissa Owens, Teton Country district judge, ruled that the ban violated a 2012 state constitutional amendment which enshrined the right of Wyoming citizens to have control over their healthcare decisions. Owens stated in judgment that ‘abortion procedures constitute essential health care for pregnant women’ and that there is ‘no compelling governmental interest to eliminate abortion procedures based on the State’s position that abortions are gruesome and barbaric’. Wyoming Governor Mark Gordon announced the day after judgment was handed down that he has instructed the Attorney General to prepare an appeal to the Wyoming Supreme Court, whose members were all appointed by anti-abortion Republican governors.
The Equality and Human Rights Commission published its written submissions last week in advance of the Supreme Court hearing in For Women Scotland v Scottish Ministers, in which it has been granted permission to intervene. The case, which is likely to result in a landmark decision on the legal definitions of ‘woman’ and ‘sex’, is due to take place on the 26th and 27th of November. The appeal has been brought by the controversial gender-critical campaign group For Women Scotland and contests the lawfulness of Scottish Government guidance which states that a person with a Gender Recognition Certificate that recognises their gender as female is to be treated as having the sex of woman. The EHRC’s submissions on appeal take the view that the definition of sex in the Equality Act ‘creates significant inconsistencies, which impair the proper functioning of the Equality Act and jeopardise the rights and interests of women and same-sex attracted people. […] As the equality regulator, we deem this to be a wholly unsatisfactory situation, which Parliament should address with urgency’. Amnesty International UK, who are also intervening, have stated that they are doing so because they believe ‘it is vital the Court is assisted by submissions setting out why legal gender recognition is a human rights issue and that trans people should not be expected to live without it’. A case note on the decision being appealed this week can be found here on the blog.
Benjamin Seifert of 1 Crown Office Row joins Lucy McCann to introduce our listeners to extradition law. Listen to Episode 207 to find out about the statutory framework that governs extradition, the procedure, the types of challenges raised when resisting extradition and recent developments in extradition law in the UK Supreme Court.
This was an application by a father for a declaration that it should be lawful for him to use an embryo created using his sperm and his late wife’s eggs in treatment with a surrogate. The Human Fertilisation and Embryology Authority opposed the application, on the basis that there was insufficient consent from his wife (AB).
The embryo was created in 2017 during the course of treatment being undertaken by EF and AB at a clinic licensed by the HFEA and remains stored by them. EF’s wife died unexpectedly along with the couple’s youngest daughter. It was against that background that this application was made.
EF argued that the HFEA’s decision preventing him from using the remaining embryo amounted to an interference (i) with his Article 8 rights, alone and as interpreted in light of Article 9, and (ii) with those rights when considered in the context of Article 14, which prohibits discrimination in the treatment of men and women. Such interference with those rights, in the circumstances of this case, was disproportionate. Therefore, argued the applicant, the Court was required by s 3 HRA 1998 to read and give effect to primary and subordinate legislation in a way which is compatible with Convention Rights.
Both EF and his late wife were adherents of what the court called the “J religion”, whose central doctrine is the sanctity of life and the divine purpose of all life forms. They believed that the divine soul enters the embryo at point of conception.
They both came from large families and wished to replicate that pattern for themselves. AB suffered a miscarriage in 2008. They went on to have a daughter (X) and they wanted a sibling for her. After IVF treatment AB gave birth to Y. Y subsequently died of neonatal complications. AB and EF wished to use their remaining embryo retrieved in that IVF treatment to have another child.
Ten years on from Cheshire West [2014] UKSC 19(covered on this blog at the time), the seminal decision on deprivation of liberty by the Supreme Court, the Family Court faces an ever-increasing number of applications for deprivation of liberty orders for children. Two recent decisions from Mrs Justice Lieven, Peterborough City Council v SM [2024] EWHC 493 (Fam) and Re J [2024] EWHC 1690 (Fam), could curb this trend. But while these decisions emanate from the Family Court, their reasoning may be of broader interest and could prompt wider questions about Article 5 ECHR and what constitutes a deprivation of liberty.
Deb and Graham characterise my argument as follows: “the right to life under Article 2 is absolute and allows no exception; there is a negative obligation upon the UK not to take life; any euthanasia laws would necessarily involve the taking of life; therefore euthanasia laws would breach Article 2.” They then point out that this argument has been rejected in Mortier v Belgium.
The problem is that this completely mischaracterises my argument and as result Deb and Graham dedicate several paragraphs to attacking a strawman. My argument was much narrower than they claim. As I explained in my blog post the “negative obligation prohibits the State from conducting euthanasia and assisted suicide itself, even as part of a well-regulated scheme with appropriate safeguards. This means that, under the Convention, States may allow/tolerate private parties from conducting euthanasia/assisted suicide with appropriate safeguards but the State itself cannot conduct them.” (emphasis added)
This week the Terminally Ill Adults (End of Life) Bill was published, with the second reading vote scheduled for 29 November 2024. The bill would allow terminally ill adults, who have capacity, to request to be provided with assistance to end their own life (clause 1). “Terminally ill” is defined in the bill to mean that the requestor has an inevitable progressive illness that cannot be reversed by treatment and as a result their death can reasonably be expected within six months (clause 2). The requestor would be assessed by two doctors (see clauses 7 and 8) and their request would be subject to approval from a High Court judge (clause 12). The bill confirms that medical workers who object to assisted dying will have no obligation to provide assistance (clause 23). The bill also creates offences of dishonesty, coercion or pressure in relation to requesting assistance (clause 26) and falsification or destruction of documentation regarding requests of assistance (clause 27). The controversial bill has stirred debate regarding the proper balance between bodily autonomy and safeguarding vulnerable people. On this blog, there has been a debate on whether the bill would place the UK in breach of article 2 ECHR (available here and here). There is also discussion of “slippery slopes” ie. whether once the bill has passed assisted dying could be made available to a wider range of requestors and the potential dangers (available here and here).
In their co-authored judgment, Lord Sales and Dame Siobhan Keegan provide a rich analysis of how the courts should consider the welfare of children in an immigration context. In doing so, they clarify the meaning and effect of Section 55 of the Borders, Citizenship and Immigration Act 2009 (“Section 55”) and its interaction with Article 8 of the European Convention on Human Rights (“Article 8”). The judgment provides a guide for how the appellate courts should assess decision-making by the Secretary of State, her officials, and the First-tier Tribunal.
Justices: Lord Hodge, Lord Briggs, Lord Leggatt, Lord Burrows and Lady Simler
The Supreme Court has affirmed that there is no duty of care, and hence no liability in negligence, for failing to confer a benefit, which includes failing to protect a person from injury, as opposed to making matters worse. This applies equally to public authorities such as the police as it does to private individuals.
Brief Summary
On 4 March 2014, Mr Kendall’s car skidded on a patch of black ice on the A413 road, causing him to lose control and roll over into a ditch. Concerned by the state of the road, after making an emergency call, he stood by the road signalling cars to slow down.
Around 20 minutes later, police officers attended the scene. They started clearing up debris from the accident and put up a “Police Slow” sign up. After warning the police about the dangerous state of the road, Mr Kendall left to visit the hospital to tend for non-life-threatening injuries he had suffered. It was alleged that, but for the arrival of the police, Mr Kendall would have continued attempts to alert road users of the danger. Having cleared the debris, and after Mr Kendall had gone to hospital, the police officers removed the “Police Slow” sign and left the scene, with the road in the same condition as it had been previously. They did so in the belief that there was no hazard and having failed to discover or inspect the sheet ice.
There are many well-tuned arguments both for and against the liberalisation of the UK’s strict euthanasia laws, some more helpful than others. This piece is not concerned with weighing up the policy arguments for or against such a move, nor does it consider which “side” of the argument is ultimately more convincing. Indeed, the authors do not necessarily agree with one another on the discrete question of whether Kim Leadbeater MP’s Bill should be supported.
But one curious argument has recently emerged which is of serious concern to both authors: the argument that liberalising euthanasia laws, in line with the proposed changes in Leadbeater’s Bill, should be resisted, as doing so would be to contravene the rights under the European Convention on Human Rights (ECHR). In this post, we seek to debunk this argument.
There are, we think, two main variants of ECHR-based arguments to this effect: one invoking Article 14 (freedom from discrimination) and the second relying on Article 2 (right to life). Neither is convincing.
Last Thursday, legislation providing for safe access zones around abortion clinics came into force. Within these safe access zones, it is now a criminal offence to intentionally or recklessly:
influence any person’s decision to access or facilitate abortion services at an abortion clinic;
obstruct any person from accessing or facilitating abortion services at an abortion clinic; or
cause harassment, alarm or distress to any person in connection with a decision to access, provide or facilitate abortion services at an abortion clinic.
Dame Diana Johnson, Crime and Policing Minister, has stated that she is “confident that the safeguards we have put in place today will have a genuine impact in helping women feel safer and empowered to access the vital services they need”. Last week also saw the introduction of a new preventative duty under the Equality Act 2010 with employers now being required to take “reasonable steps” to prevent the sexual harassment of their employees.
In Other News
The Israeli Knesset (Parliament) voted by a 92-10 majority last Monday night to adopt two bills banning the UN’s Palestinian refugee agency (UNRWA) from Israel and the Occupied Palestinian Territories and labelling it a terrorist organisation. Israeli PM Benjamin Netanyahu said in a post on X (formerly Twitter) that “UNRWA workers involved in terrorist activities against Israel must be held accountable. Since avoiding a humanitarian crisis is also essential, sustained humanitarian aid must remain available in Gaza now and in the future”. However, no alternative aid structure has been proposed, leading to serious concerns about the availability of aid in the region. The new laws are likely to have the effect of forcing the closure of the UNRWA headquarters in East Jerusalem. In response to the vote, UN Security Council President Pascale Christine Baeriswyl has issued a press statement confirming that the members of the Security Council have “underscored that UNRWA remains the backbone of all humanitarian response in Gaza, and affirmed that no organization can replace or substitute UNRWA’s capacity and mandate to serve Palestinian refugees and civilians in urgent need of life-saving humanitarian assistance”. Philippe Lazzarini, UNWRA Commissioner-General, has said that the vote “sets a dangerous precedent” and “will only deepen the suffering of Palestinians” who have already “been going through sheer hell”.
Charity Human Rights Watch (HRW) criticised last week a bill under consideration by the Armenian government which is seeking to enforce mandatory video surveillance across the capital city. HRW have stated that the surveillance is “unjustified and interferes with privacy and other rights”, claiming that it would have a “chilling effect on fundamental civil and political rights”. The proposed laws would require private entities to install surveillance equipment and provide police 24/7 access to live video feeds. HRW referred to a 2022 report from the United Nations High Commissioner for Human Rights on the right to privacy in the digital age which states that mass surveillance for the purposes of general monitoring, of the same type the proposed bill would introduce, is an “almost invariably disproportionate” interference with the privacy of individuals. The Armenian parliament is expected to have a final vote on the bill before the close of the year.
In the Courts
The Supreme Court has handed down judgment in the case of Tindall v Chief Constable of Thames Valley Police, confirming that the police do not owe a positive duty of care in law to protect individuals from harm. The facts of Tindall concern a driver who, after hitting a patch of black ice on the A413 and temporarily losing control but escaping serious injury, reported the ice to the police. The police attended the scene but did not take any effective action to remove the danger, resulting in the deaths of two drivers shortly afterwards who collided after skidding on the same patch of ice. While the Court accepted that the actions of the police amounted to a ‘serious dereliction of their public duty owed to society at large’, it was held that public authorities such as the police are not liable for merely ‘failing to protect’ members of the public. The Court interestingly agreed that the police would have been liable had they actively made matters worse; however, this was not the case on the facts. Tindall is the latest in a controversial line of cases denying that the police should owe a legal duty of care to protect individuals from harm as a result of their special status.
Judgment has also been given in Abu Qamar v Secretary of State for the Home Department, a human rights appeal won by a Palestinian student who had her UK visa revoked after making highly controversial comments regarding the 7 October attacks last year. The First-tier Tribunal (Immigration and Asylum Chamber) held that the Home Office decision constituted a “disproportionate interference with her protected right to free speech” under the ECHR and that the Home Office had failed to show that Abu Qamar’s presence in the UK was “not conducive to the public good”. The Tribunal referenced the “clearly recognised and fundamental distinction between supporting the Palestinian cause and supporting Hamas and their actions,” stating that “nowhere” did the appellant “express support for Hamas specifically, or their actions”. In particular, her referring to Israel as an “apartheid state” was said to be “consistent with views expressed publicly by human rights organisations”.
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