Category: LEGAL TOPICS
23 February 2014 by David Hart KC
R (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 read judgment
Jeremy Hyam of 1 Crown Office Row was for the Trust. He was not involved in the writing of this post.
L, aged 26, was in a medium security hospital for his serious mental health problems. Concerns about his animus towards another patient arose, and the Admissions Panel of Broadmoor (a high security hospital) agreed to his transfer. It did so without allowing his solicitor to attend and without giving him the gist of why his transfer was to be made.
So far, so unfair, you might think, as a breach of the common law duty to come up with a fair procedure.
But the next bit is the difficult bit. How does a court fashion a fair procedure without it becoming like a mini-court case, which may be entirely unsuitable for the issue at hand? This is the tricky job facing the Court of Appeal. And I can strongly recommend Beatson LJ’s thoughtful grappling with the problem, and his rejection of the “elaborate, detailed and rather prescriptive list of twelve requirements” devised by the judge, Stadlen J.
Note, though L eventually lost, the CA considered that proceedings were justified because of their wider public interest. Something for Parliament to deliberate upon when it debates Grayling’s proposed reforms for judicial review: see my recent post.
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18 February 2014 by David Hart KC
Commission v. UK, judgment of CJEU, 13 February 2014 – read judgment – UPDATED
Litigation costs are troublesome, but they are particularly difficult in environmental cases where the claimant is not necessarily pursuing his private interests. This case is the result of a long-running and successful campaign by NGOs to persuade the EU Commission to investigate UK environmental legal costs. The main finding may not bother the UK too much, because wisely it saw this one coming and changed costs rules in environmental public law cases. A subsidiary ruling about cross-undertakings has also been more recently included in a rule change.
All of this comes from Article 9 of the Aarhus Convention (to which the EU has subscribed) which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”.
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18 February 2014 by Richard Mumford
Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust, Phillips J with assessors, 5 February 2014 – read judgment
Upholding the rights of individuals who lack the mental capacity to conduct proceedings can be a minefield for the unwary or even, as shown by this case, the wary. The point at issue before the court was whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer.
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9 February 2014 by David Hart KC
Sections 50 to 57 of the Criminal Justice and Courts Bill and Explanatory Notes; the full Government response is here, 4 February 2014
At first sight, proposals full of sound and fury, and signifying not a great deal for planning and environmental challenges. There are some slippery costs changes which we need to look at, but some of the potentially more concerning proposals (see Adam’s post and the linked posts) do not fully apply to this area, as I shall explain. There are also some perfectly sensible proposals about harmonising planning challenges which lawyers have been advocating for years.
This consultation got going in September 2013 when Grayling put forward his round 2 of reform to judicial review in a wide-ranging, and frankly worrying, consultation paper. This week’s announcement and draft bill seeks to take some of these measures forward, but leaves others at home.
Mercifully, the bill does not include the ill-thought out consultation proposal to reform rules about standing in judicial review – who can complain of unlawful action by government? The proposal had been very worrying to those concerned with environmental challenges. It would have led to the rather unsatisfactory position that a NIMBY complaining about a nearby development would have been able to challenge an unlawful decision, but an entirely altruistic concern about unlawfulness affecting, say, birds, bats or habitats would have been dismissed not on the merits, but because the NGO or individual conservationist had insufficient “interest” in the outcome. See my previous post on this.
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7 February 2014 by
Richardson v Director of Public Prosecutions [2014] UKSC 8 – read judgment / press summary
The tactics of protesters engaging in demonstrations, or acts of civil disobedience, frequently raise interesting questions of law. A demonstration by two activists opposed to the Israeli occupation of the Palestinian Territories, who entered a shop in Covent Garden which sold produce from the Dead Sea, produced on an Israeli settlement, recently resulted in the Supreme Court addressing two such questions.
First, in what circumstances can someone who trespasses on premises and disrupts the activities of the occupiers avoid prosecution by arguing that those activities were in some way unlawful?; and second (obliquely) is the construction of Israeli settlements on the West Bank an offence under English law? The short answers were (1) only when the unlawfulness is integral to the occupier’s activity; and (2) probably not.
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6 February 2014 by Adam Wagner
The Ministry of Justice has published its response to the consultation on the latest round of Judicial Review reforms. The full response is here and the Criminal Justice and Courts Bill is here.
In my post on the first draft of the MoJ proposals, I warned to beware of kite flyers, and said:
Sometimes, especially with Government consultations, a kite is raised in order to distract from what is really happening on the ground. As with the last phase of JR reform, the rhetoric is more extreme than the reality.
Without wanting to say “I told you so” (oops), don’t be fooled by the seeming concessions. There is still a lot to be concerned about in what remains, as there was in the last round of changes – as Dr Mark Elliott points out, JR, like the NHS (and Communist Russia), now seems to be in a state of perpetual reform. I do not intend here to analyse the proposals in detail, but I will point you towards some excellent early articles.
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29 January 2014 by Adam Wagner
Two barristers have advised a Parliamentary committee that some mass surveillance allegedly undertaken by the UK’s security services is probably illegal. Jemima Stratford QC and Tim Johnston’s advice (PDF) was commissioned by the chair of the All Party Parliamentary Group on Drones.
You may ask why an Parliamentary group on drones is getting involved in the GCHQ surveillance debate, itself kickstarted by the revelations by Edward Snowden (pictured). The slightly tangential answer is that the committee is concerned about the legality of data being passed to the United States for use in drone strikes.
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23 January 2014 by Dominic Ruck Keene
Vidal Hall and Ors v Google Inc [2014] EWHC 13 (QB) – read judgment
A group of UK Google users called ‘Safari Users Against Google’s Secret Tracking’ have claimed that the tracking and collation of information about of their internet usage by Google amounts to misuse of personal information, and a breach of the Data Protection Act 1998. The Judge confirmed that misuse of personal information was a distinct tort. He also held that the English courts had jurisdiction to try the claims.
Mr Justice Tugendhat’s decision was on the basis that (1) there was a distinct tort of the misuse of private information (2) there was a serious issue to be tried on the merits in respect of the claims for misuse and for breach of the DPA; (3) the claims were made in tort and damage had been sustained in the jurisdiction and (4) England was clearly therefore the most appropriate forum for the trial.
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22 January 2014 by David Hart KC
R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, [2014] UKSC 3 – read judgments
So the challenge to the way in which the Government wished to push the HS2 project through Parliament has failed before the Supreme Court, though not without clarifying the way in which key EU environmental provisions are meant to work. And we will also see a further flexing of the Court’s muscles against a too straightforward reading of the supremacy of EU law when seen against our constitutional principles.
The objectors said the command paper which preceded the Parliamentary hybrid bill, in which the Government set out its proposals for HS2, fell within the scope of the Strategic Environmental Assessment Directive 2001/42/EC and that an SEA ought therefore to have been carried out. The directive applies to plans or programmes which set a “framework” (Art.3(2)(a)) for future decisions whether to grant development consent for projects, and it was said that the command paper set the framework for the decision whether to grant consent for HS2.
Secondly, the objectors said that the legislative procedure in Parliament does not meet the requirements of the Environmental Impact Assessment Directive 2011/92/EU. The EU Court of Justice has interpreted that directive as imposing a number of requirements, including that the legislature must have available to it the information required by the directive, and a requirement that national courts must be able to verify that the requirements of the directive have been satisfied, taking account of the entire legislative process, including the preparatory documents and the parliamentary debates.
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19 January 2014 by Guest Contributor
West London Mental Health NHS Trust (Respondent) v Chhabra (Appellant) [2013] UKSC 80 – read judgment
It is not unknown for lawyers or doctors to speak on a mobile phone about confidential details of a case while travelling by train. Some of you may even have left case papers out on your seat or table while you hunt down a bacon baguette from the Travelling Chef (formerly known as “Toastie Geoff” prior to rebranding). If so, read on, for this is a cautionary tale…
This appeal by Dr Chhabra was concerned with the roles of the case investigator and the case manager when handling concerns about a doctor’s performance under the disciplinary procedures introduced over eight years ago for doctors and dentists in the National Health Service. The national policy framework is known as ‘Maintaining High Professional Standards in the Modern NHS’ (MHPS), which the Trust had implemented through its own policies.
The factual summary below is derived from the Supreme Court Press Summary
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9 January 2014 by Guest Contributor
The glass foyer of the Palais de Droits de l’Homme in Strasbourg (pictured) is not to everyone’s taste. Some find it inspiring, others – often advocates appearing for the first time – are simply too nervous to notice. Typically, Rumpole on his triumphant visit takes a much more down-to-earth approach, comparing the building to the boiler of a ship.
Whatever one makes of it, the foyer of the Court is designed to remind visitors of two things: the Court’s accessibility and its openness. That is not always apparent from the Court’s procedures or from the language it sometimes uses to express itself, but it is beyond question that the Court is open to the different legal traditions of its member States. Most influential among those traditions must surely be the common law.
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8 January 2014 by Guest Contributor
Marines A & Ors v Guardian News and Media & Other Media [2013] EWCA Crim 2367 – read judgment
On 15 September 2011 a patrol of Royal Marine Commandos were involved in an incident, which resulted in one of them, referred to as “Soldier A”, shooting dead an armed but seriously wounded Taliban fighter. Evidence of the shooting emerged later and five members of the patrol were eventually charged with murder. The charges against two of them were later dropped but the three remaining marines were tried for murder before the Court Martial. On 8 November 2013, Soldier A was found guilty of murder.
Quite apart from this extraordinary facts, the trial was unusual for another reason: publication of the identity of each of the defendants was prohibited at the commencement of the proceedings by an assistant Judge Advocate and later the Judge Advocate General (each of the judge’s in the court martial who considered the issue are referred to throughout as “judge”). The Court Martial Appeal Court (essentially the Court of Appeal Criminal Division sitting under a different name) was later invited to review the orders in respect of reporting restrictions. This was linked to the release of video footage and photographs relied on by the prosecution during the case.
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3 January 2014 by
LH Ltd v The Legal Ombudsman [2013] EWHC 4137 (QB) – Read judgment
Adam Wagner represented the Legal Ombudsman in this case. He is not the writer of this post
Does the Legal Ombudsman have teeth? That was, in effect, the question before the High Court in this judicial review brought by a former solicitor against a decision by the Ombudsman to reduce his fees following a complaint by one of his clients. The Court’s answer was a very clear yes. Where the Ombudsman has made her decision properly, taking relevant factors into account, it is likely to withstand judicial review challenge.
In this case, the solicitor in question had been convicted of a count of fraud following an investigation into his involvement in money laundering and had been imprisoned and struck off the roll of solicitors. His prison sentence served, he was now pursuing his former clients through the courts for unpaid invoices. He appeared on behalf of his firm with the court’s permission, arguing that the Ombudsman’s decision to reduce his fees from £5,000 including VAT to £1,500 plus VAT (in a case which had nothing to do with the money laundering allegations) was in excess of jurisdiction and was irrational.
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1 January 2014 by Guest Contributor
UKHRB editor Adam Wagner asked Twitter for suggestions of human rights kids for books… and Twitter responded! Here are some of those responses, compiled by Thomas Horton.
‘Whether Maycomb knows it or not, we’re paying the highest tribute we can pay a man. We trust him to do right. It’s that simple.’ (Harper Lee, Nelle ‘To Kill a Mockingbird’, Ch. 24)
Whether Harper Lee’s ‘To Kill a Mockingbird’ (as recommended by @Kirsty_Brimelow) will impact a child so much that they want to become a human rights lawyer is not a given. Yet there are plenty of classic novels and human rights-centered literature aimed at a younger audience which give children the opportunity to learn human rights principles. The legal twittersphere responded in their droves to suggestions of such literature, and below are just a selection of what is available:
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30 December 2013 by Dominic Ruck Keene
Griffiths v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2013] EHWC 4077 (Admin) – read judgment.
Oliver Sanders of 1 Crown Office Row represented the Defendant in this case and Adam Wagner also acted for the Defendant prior to the substantive hearing. They are not the writers of this post.
Two female prisoners nearing the date on which they would be considered for release on licence, brought conjoined challenges against the Secretary of State for Justice in respect of the provision of ‘approved premises.’ The Claimants challenged the alleged continuing failure to make adequate provision for approved premises to accommodate women prisoners like them released on licence.
Mr Justice Cranston rejected the argument that the limited number of approved premises for women treated female prisoners released on licence into such premises less favourably than comparable men. He held that despite the likelihood of a greater geographic separation from their homes and families, the Secretary of State had not discriminated directly or indirectly against female prisoners. However, the Secretary of State had failed to fulfil his duty under the Equality Act 2010 to consider the impact of the limited provision of approved premises of women.
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