Category: LEGAL TOPICS
18 October 2012 by Rosalind English
I have posted previously on the logistical difficulties in legislating against genetic discrimination.
The prospect that genetic information not only affects insurance and employment opportunities is alarming enough. But it has many other implications: it could be used to deny financial backing or loan approval, educational opportunities, sports eligibility, military accession, or adoption eligibility. At the moment, the number of documented cases of discrimination on the basis of genetic test results is small. This is probably due to the relatively few conditions for which there are currently definitive genetic tests, coupled with the expense and difficulty of conducting these tests. But genetic discrimination is a time bomb waiting to be triggered and the implications of whole genome sequencing (WGS) are considered in a very interesting and readable report by the US Presidential Commission for the Study of Bioethical Issues Privacy and Progress in Whole Genome Sequencing.
Continue reading →
Like this:
Like Loading...
16 October 2012 by Adam Wagner
A short post to say that I was interviewed by Joshua Rozenberg for today’s Law in Action programme on BBC Radio 4. I was debating, with Nadine Dorries MP, a recent series of criminal prosecution (see my post from last week) brought against social media users. The debate centred on the implications for freedom of speech as protected by Article 10 of the European Convention on Human Rights.
The full programme can be listened to here (UK only, I think) – the social media section is from around 20 minutes in. You may have guessed from my post as well as this interview that I think the current state of the law under the Communications Act 2003 is causing very significant problems for freedom of expression.
Relatedly, I am chairing an interesting panel debate tomorrow (Wednesday) evening on this very topic. I understand the event is full but you can submit questions ahead of the event to or follow for live tweets @HumanRightsLawA ; #lawandtwittering
Enjoy the show, and be careful what you tweet.
Continue reading →
Like this:
Like Loading...
16 October 2012 by Rosalind English
R (on the application of the Metropolitan Police Service) v the Chairman of the Inquiry into the Death of Azelle Rodney and Interested Parties [2012] EWHA 2783 (Admin) – read judgment
The public inquiry into the death of Azelle Rodney, which commenced in 2010, was still under way when it was interrupted by the present dispute. It concerned the issue whether police surveillance footage taken from the air, showing Azelle Rodney’s movements in the two hours before his death, should be disclosed to the legal team representing his mother at the Inquiry.
The Chairman of the Inquiry decided to permit disclosure and the Metropolitan Police Service (MPS) took these proceedings to challenge the decision.
The footage was shot during a 2005 drug heist operation involving Mr Rodney, 25, who was shot six times at point-blank range after a car chase. One of the issues of importance to the deceased’s mother (Ms Alexander, the First Interested Party) was whether there had been a better opportunity to stop the car and its occupants at any time before the hard-stop which resulted in Mr Rodney’s death. This issue involved consideration by the Inquiry of the management of the surveillance/stop operation by senior officers. The officer in charge of the operation is due to give his evidence and to be questioned by Ms Alexander’s counsel.
Continue reading →
Like this:
Like Loading...
16 October 2012 by Guest Contributor
Building on Abu Qatada
There are three cases, among the many decided by the Court in the past few weeks, which I would like to highlight. They deal with testimony potentially obtained through torture, forced labour and extraordinary rendition respectively.
The first is the case of El Haski v. Belgium (available only in French). It deals with a terrorist suspect against whom evidence obtained in Morocco during legal proceedings there (following the 2003 Casablanca bombings) was used in court in Belgium. It was unclear whether such evidence was in fact obtained by means of torture. The Court held that it was sufficient for exclusion of such evidence from trial in an ECHR state party if a suspect could show that there was a “real risk” that such evidence had been obtained by treatment contrary to Article 3. The case builds on the recent Othman (Abu Qatada) v. the United Kingdom judgment, from January of this year. In this case, such a real risk existed. The refusal by Belgian courts to exclude the evidence thus led to a violation of the right to a fair trial (Article 6 ECHR).
Continue reading →
Like this:
Like Loading...
14 October 2012 by David Hart KC
Why do judges disagree and publish their disagreements when cases get decided? After all, the Cabinet does not do so (openly at least), and our FTSE-100 companies do not generally do so, when their executives propose a merger or launch a new product. Surely, judicial dissent is a recipe for diminishing the authority of the majority answer, and an invitation to self-indulgence on the part of the minority to re-fight lost and irrelevant battles.
Lord Kerr has given a very persuasive answer to both concerns in the Birkenhead lecture on 8 October 2012. But it is worth thinking about the alternative way of doing things, before making up your mind on whether the current way is the best way.
Continue reading →
Like this:
Like Loading...
11 October 2012 by Karwan Eskerie
G (Children), Re [2012] EWCA Civ 1233 – read judgment
If you received this article by email, it will have been attributed to Adam Wagner. It is in fact by Karwan Eskerie – apologies
What is happiness? If you thought this most philosophical inquiry was beyond the remit of the judicial system then you should read this case.
In Re G (Children), the estranged parents of five children disagreed over their education. Both parents belonged to the Chassidic or Chareidi community of ultra orthodox Jews. However, whilst the father wanted the children to attend ultra-orthodox schools which were unisex and where all the children complied with strict Chareidi practices, the mother preferred coeducational ‘Modern Orthodox’ schools where boys did not wear religious clothing and peyos (long hair at the sides), and children came from more liberal homes where for instance, television was taken for granted.
Continue reading →
Like this:
Like Loading...
10 October 2012 by Rosalind English
R.P. and others v United Kingdom (9 October 2012) – read judgment
The day before our seminar on the Court of Protection and the right to autonomy, the Strasbourg Court has ruled on a closely related issue in a fascinating challenge to the role of the Official Solicitor in making decisions on behalf of individuals who are for one reason or another unable to act for themselves.
The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. This particular case involved child care proceedings, but the question before the Court was the vital one that arises out of any situation where an individual is deemed to have lost capacity to represent his or her own interests in court. What the parties asked the Court to consider was whether
the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court.
Continue reading →
Like this:
Like Loading...
10 October 2012 by Adam Wagner
Update – only 29 places left (2:10pm)
For anyone interested in the issues I raised in my post yesterday about a man given twelve weeks in prison for making sick jokes on Facebook, I am chairing a Question Time-style panel debate next Wednesday 17 October 2012, 6-7:30pm, organised by the Human Rights Lawyers Association and Article 19, the free speech charity. Article 19 are hosting the event at their offices in Farringdon.
The panel is excellent, including Tamsin Allen (head of Media and Information Law at Bindmans solicitors), John Cooper QC (amongst many other things, counsel for Paul Chambers in the Twitter joke trial) and Gabrielle Guillemin (legal officer at Article 19). The event is free and open to all, but space is limited so if you would like to come, please email administrator@hrla.org.uk.
Full details below or in a prettier version, here:
Continue reading →
Like this:
Like Loading...
9 October 2012 by Adam Wagner
Updated x 2 | A 20-year-old has been sent to prison for twelve weeks for posting offensive and derogatory comments about missing five-year-old April Jones on his Facebook page. His attempts at humour were undoubtedly stupid, offensive and exhibited incredibly poor taste and timing. But is a long spell in prison really the way we should be dealing with offensive idiots? Is a law which was passed before social media existed now placing a significant chill on our freedom of expression rights?
Matthew Woods pleaded guilty to an offence under s.127 of the Communications Act 2003, which prohibits a person sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character“. He was sentenced at Chorley Magistrates’ Court.
I will not republish Woods’ comments here, but some of them are quoted in this Evening Standard article.
Continue reading →
Like this:
Like Loading...
9 October 2012 by Lois Williams
R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) – read judgment
1 Crown Office Row’s Robert Kellar was instructed for the Defendant in this case. He is not the writer of this post.
The High Court has ruled that the failure to consider the continued detention of a mentally ill failed asylum seeker in accordance with immigration policy rendered his detention unlawful in part.
The Claimant applied for asylum based upon his account of an attack during the Rwandan genocide and subsequent events. The Home Secretary refused the application and the Claimant appealed. At the appeal he was unrepresented and he adduced no medical evidence. The Immigration Judge dismissed his appeal, disbelieving the entirety of his account. Once his appeal rights had been exhausted (that is, he was unable to appeal any further through the courts), the Secretary of State detained him on 19 October 2010 for the purpose of removal.
Continue reading →
Like this:
Like Loading...
6 October 2012 by David Hart KC
Stannard (t/a Wyvern Tyres) v. Gore, Court of Appeal, 4 October 2012 read judgment
The best part of a thousand years of law has been distilled into this scholarly resolution by the CA of an age old problem. Who pays for the consequences of an accidentally caused fire – the landowner where the fire started or the neighbour who suffered the loss?
The case is a good illustration of the dangers of the incremental development of our judge-made common law – under scrutiny from time to time from Strasbourg for its lack of precision or unjustness in its wilder reaches, but which has generally passed muster from the European Court of Human Rights: see here or the famous Sunday Times thalidomide case on the then common law of contempt.
Much of the law of civil wrongs (lawyers call it tort) is decided by judges on a case by case basis. When this has gone for too long, the law gets all thickety, dominated by a lot of one-off decisions driven by their specific facts, and where the judge don’t necessarily have their eyes on the wider picture. And these decisions can get way out of date anyway. It is a bit like a student fridge – people rarely clean it out and start again. Changing the metaphor, the law is then in need of a bit of slash-and-burn, and the Law of Fire got that pretty effectively from the CA last week.
Continue reading →
Like this:
Like Loading...
5 October 2012 by Alasdair Henderson
NADA v. SWITZERLAND – 10593/08 – HEJUD [2012] ECHR 1691 – read judgment
How is a Member State of the ECHR supposed to react when the UN Security Council tells it to do one thing and the Convention requires it to do another? That is the interesting and important question which the Grand Chamber of the European Court of Human Rights was presented with, and dodged, in its recent decision in Nada v. Switzerland.
Mr Nada is an 82-year-old Italian-Egyptian financier and businessman, who in November 2001 found himself in the unfortunate position of having his name added to the international list of suspected funders and supporters of al-Qaeda and the Taliban, which is maintained by the Sanctions Committee of the UN Security Council. Mr Nada has consistently denied that he has any connection to al-Qaeda or any other terrorist group, and in 2005 the Swiss Government closed an investigation after finding that the accusations against him were unsubstantiated. However, despite this Mr Nada remained on the list until September 2009. During the intervening 8 years the impact on Mr Nada’s health and his private and family life was severe, so he brought a claim against Switzerland for breach of his Article 8 rights, as well as breaches of Article 13 (right to an effective remedy), Article 3 (right not to be subjected to ill-treatment), Article 5 (right to liberty) and Article 9 (right to freedom of religion).
Continue reading →
Like this:
Like Loading...
2 October 2012 by Rosalind English
Child Poverty Action Group, R (on the application of) v Secretary of State for Work and Pensions [2012] EWHC 2579 (Admin) (17 July 2012) – read judgment
The High Court has ruled that the government acted unlawfully by removing the Child Poverty Commission, an advisory body set up under the Child Poverty Act 2010 . They had also acted beyond their powers by preparing a child poverty strategy without having requested and having regard to the advice of that Commission. But government is free to formulate new policy and as such there was nothing irrational about the strategy itself.
There is of necessity a great deal of statutory construction in this judgment which makes for dry reading. But the ruling is an important reassessment of the principles of judicial review that have taken root since the power of the courts to intervene in government decision making was reinforced in Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C. 147. This ruling, as every law student knows, established that a public body acts unlawfully, both in the narrow sense of acting outside its jurisdiction, and where such jurisdiction was wrongly exercised. This means that courts may intervene not just where a governmental act is unlawful under an express provision of the statute but also where the decision or policy, although authorised by statute, has been made in breach of a rule of public law.
Continue reading →
Like this:
Like Loading...
1 October 2012 by Rosalind English
The US Supreme Court’s term begins today, and race relations is at the top of the court’s agenda. The US press hails Fisher v University of Texas as the most important case the Court has agreed to hear thus far. Word is out that it could sound the death knell for affirmative action in the United States.
The justices are being asked to decide whether race-based affirmative action in college admissions is still constitutional. The petitioner is a white student who was turned down by the University of Texas in 2008. She claims she was a victim of illegal race discrimination under their policy of affirmative action.
In 1997 the Texas legislature enacted a law requiring the University of Texas to admit all Texas high school seniors ranking in the top ten percent of their classes. Whilst this measure improved access to tertiary education for many, the colleges protested at having their hands tied with regard to highly talented students who showed promise in certain subjects but did not come in to the top ten percent (including minority students in highly integrated high schools). To redress this balance the Supreme Court ruled in 2003 that universities could consider a minority student’s race as a “plus factor” in admissions. The Court based its ruling on the need for colleges to ensure a diverse student body. Following this judgment, the University of Texas added a new affirmative action policy to go along with the automatic admission rule with race being a “plus factor” in admission.
Continue reading →
Like this:
Like Loading...
30 September 2012 by Adam Wagner
Meads v. Meads, 2012 ABQB 571 (Canadian) – read judgment / PDF
Almost a year ago, I and some other legal bloggers wrote about a phenomenon known as the Freemen on the Land movement. I called the post Freemen of the dangerous nonsense, for that is exactly what the movement is, for those desperate enough to sign up to it. Now a Canadian judge has done many judges around the world a huge favour by exploding the movement’s ideas and leaders (or “gurus”) in a carefully referenced and forensic 192-page judgment, which should be read by anyone who has ever taken a passing interest in this issue, and certainly by any judge faced by a litigant attempting the arguments in court.
The Freemen, alongside other groups with similar creeds, believe that if you change your name and deny the jurisdiction of the courts, you will be able to escape debt collectors, council tax and even criminal charges. As this member of the Occupy London movement, “commonly known as dom” wrote in guardian.co.uk (of all places) “if you don’t consent to be that “person”, you step outside the system“.
As you may have guessed, this magical technique never works in the courts, but judges are often flummoxed when faced with the arguments, which are odd and in many ways risible. But what has been lacking is an authoritative, systematic judgment explaining, in detail, why that is. Until now, that is.
Continue reading →
Like this:
Like Loading...
Recent comments