R (o.t.a T) v. HM Senior Coroner for West Yorkshire  EWCA 187 (Civ), 28 April 2017 – read judgment
A sad story of human frailty posed two difficult problems for the Coroner, and the Court of Appeal.
A 19-year old mother went into hospital, with a shoebox. In the shoebox was the 6-days dead body of her daughter. She told the hospital and the police that she had been raped, hence the shame about reporting the death. She had given birth in her bedroom at home, and she said that the baby had been cold when born. Continue reading
In the news
The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.
In the Chamber Judgment (currently available only in French) in the case of Lopes de Sousa Fernandes v. Portugal (App. No. 56080/13) decided just before Christmas, the European Court of Human Rights (ECtHR) held that there was both a substantive (by 5 votes to 2) and a procedural (unanimous) violation of Article 2 in the case of the death of the Applicant’s husband in circumstances where there was a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, even though that negligent failure was not necessarily causative. This very surprising outcome is important, and may be seen as a radical departure from the established case law of the Court on the necessary threshold for establishing an Article 2 violation in State (i.e. NHS) hospital cases. It also underlines the increased importance of informed consent in clinical negligence cases when viewed from a human rights perspective. Continue reading
Judgments in best interests cases involving children often make for heart-wrenching reading. And so it was in Bolton NHS Foundation Trust v C (by her Children’s Guardian)  EWHC 2920 (Fam), a case which considered Royal College of Paediatrics and Child Health guidance, affirming its approach was in conformity with Article 2 and Article 3 ECHR. It also described, in the clearest terms, the terrible challenges facing C’s treating clinicians and her parents. Continue reading
Photo: The Guardian
In Finucane’s (Geraldine) Application  NIQB 57 the Northern Ireland High Court dismissed a challenge to the decision by the British Government to carry out a ‘review’ by Sir Desmond Da Silva rather than a public inquiry into the murder of Belfast solicitor Pat Finucane on 12 February 1989.
Mr Finucane, a Belfast solicitor who had represented a number of high profile IRA and INLA members including Bobby Sands, was murdered in front of his family by loyalist paramilitaries in one of the most notorious killings of the Troubles. His death was mired in controversy due to the collusion between the security forces and his killers. Mr Justice Stephens stated at the outset of his judgment that
It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law. There is and can be no attempt at justification.
JX MX (by her mother and litigation friend AX MX) v. Dartford & Gravesham NHS Trust  EWCA Civ 96, 17 February 2015 – read judgment
Elizabeth Anne Gumbel QC and Henry Whitcomb of 1COR (instructed by Mark Bowman of Fieldfisher) all appeared pro bono for the successful appellant in this case. They have played no part in the writing of this post.
For some years there has been debate between the judges about whether anonymity orders should be made when very seriously injured people’s claims are settled and the court is asked to approve the settlement. This welcome decision of the Court of Appeal means that anonymity orders will normally be made in cases involving protected parties.
This is why the CA reached its decision.
R (on the application of FI) v Secretary of State for the Home Department  EWCA Civ 1272 – read judgment
The Court of Appeal has held that the physical restraint of persons being removed from the UK by aircraft is subject to a sufficient framework of safeguards to fulfil the state’s obligations under Articles 2 and 3 of the European Convention on Human Rights. Further, the decision of the Home Secretary not to publish aspects of the applicable policy on the use of such control and restraint is lawful.
FI was restrained by detainee custody officers during an attempt to remove her from the UK in 2011, though the issues on this appeal did not turn on the specific circumstances of her case. In issue was the sufficiency of the framework of safeguards on the use of such restraint as contained predominantly within the Use of Force Training Manual (the “Manual”).