Category: BLOG POSTS
8 December 2017 by Rosalind English
TBS v Metropolitan Police Commissioner [2017] EWHC 3094 – read judgment
The High Court has refused an application to strike out a claim in negligence and misfeasance in public office taken by someone born as a result of a liaison between an activist in the animal liberation movement and a man who subsequently turned out to be an undercover police officer.
Although this is not a full trial of the merits, the ruling from Nicol J triangulates on very interesting questions relating to “wrongful life” claims, legal duties owed by people in public office, and the predictability of harm as well as the identity of potential victims. It also touches on the character of psychiatric harm, and how difficult it is to identify the point at which it can legitimately be said to arise. Whatever the results of the ultimate litigation, the arguments here raise sharp questions of public policy as to who, and what, should be compensated from the public purse. There is also a deep philosophical question underlying the whole argument which is known as the “non-identity problem”. Can you harm somebody by bringing them into existence?
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7 December 2017 by Alasdair Henderson
Belhaj and Boudchar v. Director of Public Prosecutions (Foreign Secretary intervening) [2017] EWHC 3056 (Admin) – read judgment here.
The Justice and Security Act 2013 introduced the idea of Closed Material Proceedings (CMP) to civil litigation in a significant way for the first time. This is a procedure (which had previously only used in a small number of specialist tribunals) whereby all or part of a claim can be heard in closed proceedings in order for the court to consider material which, if disclosed publicly, would risk harming national security. These hearings exclude even the claimant, who is represented instead by a Special Advocate who takes instructions and then is unable to speak to his or her client again once they have seen the sensitive material.
This system is obviously far from ideal. Indeed it is a major deviation from the usual (and very important) principle that justice must not only be done, but be seen to be done. It was introduced because the alternative in some cases involving national security matters was no justice at all. But it must be used sparingly. In particular, the 2013 Act allows its use only in civil litigation and not in “proceedings in a criminal cause or matter” (section 6(11)). The question that the Divisional Court had to consider in this case is how wide that exception for criminal matters should be.
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6 December 2017 by Rosalind English
O’Connor (Appellant) v Bar Standards Board (Respondent) [2017] UKSC 78 – read judgment
The Supreme Court has ruled that a barrister’s claim against the Bar Standards Board for discrimination should not be time barred under the one year limit prescribed by the Human Rights Act. In her case, the Court said, the time limit for bringing proceedings only started running when she successfully appealed against disciplinary action taken against her. The decision to bring disciplinary proceedings and the subsequent hearings were part of a single process, not a series of disparate acts which set the time limitation period running.
The Court also concluded that the High Court judge was correct to conclude that the appellant’s claim of indirect discrimination in respect of her right to be treated equally under the law (Articles 14 and Article 6) did have a real prospect of success.
The following report is based on a combination of the full judgment and the Supreme Court’s press summary.
Background facts and law
Ms O’Connor is a practising barrister who faced a number of disciplinary charges brought against her by the Bar Standards Board in 2010. In May 2011, the Disciplinary Tribunal found most of these charges proved. The appellant, who is black, appealed to the Visitors of the Inns of Court and in August 2012 her appeal was allowed on the basis that none of the alleged conduct involved any breach of the Bar Code of Conduct.
In February 2013, the appellant issued the present proceedings, which included an allegation of violation of Article 14 of the ECHR together with Article 6. She claimed that the BSB, by bringing the disciplinary proceedings. had discriminated against her on racial or ethnic grounds. In particular, she alleged that the respondent had infringed her right to a fair trail on grounds of race.
Since this was a claim under section 6 of the Human Rights Act 1998 the limitation provisions under that Act applied. The BSB maintained that this claim was time – barred under section 7(5)(a) of the 1998 Act which provides that proceedings must be brought before the end of the period of one year beginning with the date on which the act complained of took place.
Shortly afterwards the respondent sought to strike out the case on the basis that none of the appellant’s had any real prospect of success and, in any event, there was a complete defence under section 7(5)(a) . Although the strike out was initially successful, on appeal Warby J in the High Court held that there was a sufficiently pleaded case that the respondent had indirectly discriminated against the appellant. However, he also held that the claim was indeed time – barred under the Human Rights Act.
The Court of Appeal held that the limitation period under section 7(5)(a) had started to run when the Disciplinary Tribunal had found the charges against the appellant proved and so had expired before she had issued her claim.
The appeal essentially turned on one question: when the ‘prosecution’ of the appellant commenced . If it started with the decision to bring proceedings was taken in 2010 then the one – year time limit had expired some 17 or 18 months before the issue of these proceedings in February 2013. If the BSB’s ‘prosecution’ of the appellant was considered to be a continuing state of affairs up to the tribunal decision, time under section 7 only expired in May 2012, which meant that her discrimination claim was in time.
It was argued on behalf of the respondent that the decision to refer the appellant to a disciplinary tribunal, even if indirectly discriminatory, was a one – off act with potentially continuing consequences rather than a continuing violation.
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6 December 2017 by Rajkiran Barhey
On 5th December 2017, an event exploring the current political situation in Cambodia was held at Chatham House. The discussion was led by Sam Rainsy, a key member of Cambodia’s recently dissolved opposition party, the Cambodian National Rescue Party (CNRP). The discussion touched on a plethora of issues relevant to politics and human rights in Cambodia, ranging from the impact on Cambodia of China’s dam-building project to the Khmer Rouge Tribunal.
This article will provide a brief history of Cambodia before reviewing four topics which were considered at the event: (1) the influence of China; (2) the power of the army; (3) sanctions and aid; and (4) the 2018 election.
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1 December 2017 by David Hart KC
Fishermen & Friends of the Sea v. The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37, 27 November 2017 – read judgment
A vignette of where
(1) Trinidad and Tobago is,
(2) the EU/UK is,
(3) where Michael Gove may wish us to be post-Brexit,
on the Polluter Pays Principle (PPP), a key environmental principle.
As we shall see, in legal terms, the expansiveness of (1) and (2) contrasts with the potential parsimony of (3).
Now (3) may be better than nothing, as per the European Union (Withdrawal) Bill, i.e, no enforceable environmental principles at all. But that does not mean we should not aspire for more. After all, as we shall see, the PPP is hardly a racy new entrant into environmental law.
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1 December 2017 by Jonathan Metzer
On 29th November 2017, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague delivered its judgment on six appeals by Croatian officials and military officers against their convictions for their actions during the Bosnian War of 1992-95.
These crimes, which included grave breaches of the Geneva Conventions and crimes against humanity, arose out of a joint criminal enterprise aimed at creating a Croatian entity in the territory of Bosnia and Herzegovina, known as the ‘Croatian Republic of Herzeg-Bosnia’. This was backed by the government of Franjo Tuđman, President of Croatia at the time.
Following the decision, Slobodan Praljak, one of the appellants, shouted out that he rejected the verdict and drank a vial of poison, dying later that day.
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1 December 2017 by Dominic Ruck Keene
Ratko Mladić was one of the most notorious figures of the war in Bosnia.
He was Commander of the Main Staff of the Bosnian Serb Army between 1992 and 1995. He was indicted in 1996, arrested in 2011 and tried between 2012 and 2016.
Last week the International Criminal Tribunal for the former Yugoslavia delivered its judgement. Mladic was found guilty of genocide in Srebrenica, crimes against humanity for ethnic cleansing of Bosnian towns and the siege of Sarajevo, and war crimes for the hostage taking of UN staff to stop NATO intervention.
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30 November 2017 by Guest Contributor
Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916 – read judgment
In a landmark decision handed down on 28th November 2017 the Court of Appeal ruled that cohabiting couples should have a right to claim bereavement damages, putting them in a position analogous to spouses and civil partners.
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30 November 2017 by Rosalind English
Updated: Brexit, Article 13, and “animal sentience” in law (28 November 2017) – Animal Law’s Expert Briefing Note
In November 2017 a vote took place in the House of Commons on a proposed amendment to the EU (Withdrawal) Bill. The Commons Library briefing paper was published on 7 December: Animal Sentience and Brexit. The amendment sought to incorporate into UK law a provision in the European treaty that stated the EU and its member States “shall, since animals are sentient beings, pay full regard to the welfare requirements of animals” when formulating and implementing the EU’s policies. The vote was defeated by 313 to 295 votes.
The story of this debate has prompted a great deal of comment in newspapers and on social media, mostly critical of the UK Government’s position. The coverage reflects much of the prejudice and confusion attaching to animals reared for our use, be it for medical therapy, food or companionship. That is to be expected. But what is less excusable is that most of the coverage was based on misunderstandings of both the Treaty Article and other EU provisions relating to animals.
So may I put in a plea for anyone who is interested to read the clear and balanced account of this issue set out by the UK Centre for Animal Law in their Briefing Note, which I will attempt to summarise here. I do urge reading the original document, which is an excellent summary of the legal and factual issues involved.
A quick reminder
When the Brexit vote came in, I wrote a post under the heading of One Trade Freedom We can Do Without. Maybe not tactful timing then, but this question is now ripe for consideration, with DEFRA secretary Michael Gove promising better protections for animals raised for food, and even for companion animals such as dogs and horses, once they are no longer trapped in the imperative of free movement of goods under the EU Treaty provisions.
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30 November 2017 by Rajkiran Barhey
Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al Hijrah School [2017] EWCA Civ 1426 – read judgment
Update: Listen to the Law Pod UK podcast episode 20, available for free download from iTunes or from Audioboom here.
This fascinating judgment, delivered by the Court of Appeal on 13 October 2017, found that a policy of gender segregation in a co-educational school amounted to unlawful gender discrimination.
Background
Al-Hijrah School taught children from ages 4-16 according to an Islamic ethos. At age 9, children were segregated completely by gender in lessons, breaks, school trips, clubs etc. Following an inspection in June 2016, Ofsted published a report criticising segregation as gender discrimination.
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28 November 2017 by Rosalind English
MNX v Khan [2017] EWHC 2990 (QB) (23 November 2017) – read judgment
Can a mother who consults a doctor with a view to avoiding the birth of a child with one disability recover damages for the costs associated with another disability?
The claimant sought damages arising out of the wrongful birth of her son Adejuwon. She had become pregnant after being reassured that there was no risk of haemophilia. Her child was born with the condition, and it subsequently turned out that he suffered from autism as well. The costs of bringing up a child with haemophilia were estimated at £1,400,000. The additional costs of autism amounted to £9,000,000.
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28 November 2017 by Rosalind English
If you download Episodes 17 and 18 from iTunes or Audioboom, you will hear Jim Duffy discussing the proposed inquiry into the contaminated blood scandal which took place during the eighties and nineties. Episode 18 features a discussion between former historians now barristers Matthew Hill and Gideon Barth on inquiries in general, particularly ones that have been set up to investigate events which took place in the distant past.
Law Pod UK Episode 7: Prospects for the Tainted Blood Inquiry
Law Pod UK Episode 8: Do Judge Led Inquiries Work?
Related Posts:
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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28 November 2017 by Charlotte Gilmartin
R (on the application of Holborn Studios Ltd) v Hackney LBC; R. (on the application of Del Brenner) v Hackney LBC [2017] EWHC 2823 (Admin) – John Howell QC sitting as a High Court Judge read judgment
Update: Listen to the Law Pod UK podcast episode 19, available for free download from iTunes or from Audioboom here
The High Court has just ruled that the public should be reconsulted on a planning application which has been amended. Failure to do so may be procedurally unfair and therefore unlawful.
This important case will signal to public authorities the need to consider carefully their procedural obligations when determining the outcome of planning applications. They will now need to be alive to the risk that a court will substitute its own view of whether “fairness” requires that the public be re-consulted where a planning application has been amended.
Factual Background
In two judicial review applications the claimants challenged the process by which Hackney London Borough Council gave planning permission to a proposed development.
The development would have replaced a number of industrial buildings in the Eagle Wharf area of Regent’s Canal in Hackney. It is a listed area of local architectural and historic interest and lies within the Regent’s Canal Conservation Area.
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26 November 2017 by Adam Wagner
I wanted to alert you to a campaign RightsInfo has been running called #FightHateWithRights.
It’s about fighting the rise of extremism by standing up for human rights. Because social breakdown and even genocide don’t happen overnight – they are the result of the steady denial of rights over months or years. By protecting human rights, we also protect against the small cuts to liberty which can lead to far worse.
You can see all of the videos and resources here.
I have posted some of the key video content below the break, including a film featuring three genocide survivors spanning 70 years, a film featuring Professor Philippe Sands and a short video where I sum up the points of the campaign.
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25 November 2017 by David Hart KC
Privacy International v. Investigatory Powers Tribunal [2017] EWHC EWCA Civ 1868, Court of Appeal, 23 November 2017
Introduction
As all lawyers know, the great case about courts confronting a no-go area for them is the late 1960’s case of Anisminic.
A statutory Commission was given the job of deciding whether compensation should be awarded for property sequestrated, in the particular case as a result of the 1956 Suez crisis. The Act empowering it said that the
determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.
The House of Lords, blasting aside arcane distinctions, said that this provision was not enough to oust judicial review for error of law.
Fast forward 50 years, and another Act which says
determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.
The Court of Appeal has just decided that, unlike Anisminic, this Act does exclude any judicial review.
Why?
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