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The UKHRB is grateful to Aileen McColgan QC for allowing us to republish her article, which originally appeared on Panoptican, a blog published by the barristers at 11KBW here.
The central question for the Supreme Court in Bloomberg v ZXC [2022] UKSC 5 was, as Lords Hamblen and Stephens put it (with Lord Reeds, Lloyd-Jones and Sales agreeing): “whether, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation”. The short answer was “yes”.
The decision has been greeted with howls of indignation from Bloomberg but more muted responses from other sections of the press; whereas Bloomberg’s editor in chief released an editorial entitled “U.K. Judges Are Helping the Next Robert Maxwell” which stated that the judgment should “frighten every decent journalist in Britain”, the Financial Times and Guardian were more restrained, pointing out respectively that the decision would have “far-reaching implications for the British media” and would “make it harder for British media outlets to publish information about individuals subject to criminal investigations”. This is no doubt the case, but it is worth noting that the publication which gave rise to this decision was based on a highly confidential letter leaked to Bloomberg and occurred apparently without any consideration of ZXC’s privacy interests.
ZXC, regional CEO of a publicly listed company which operated overseas (“X Ltd”), sued for misuse of private information because of an article concerning X Ltd’s activities in a country for which ZXC’s division was responsible. The activities had been subject to a criminal investigation by a UK law enforcement body (“the UKLEB”) since 2013 and the article was based almost completely on a confidential Letter of Request sent by the UKLEB to the foreign state. ZXC claimed that he had a reasonable expectation of privacy in information published in the Article, in particular in the details of the UKLEB investigation into himself, its assessment of the evidence, the fact that it believed that ZXC had committed specified criminal offences and its explanation of how the evidence it sought would assist its investigation into that suspected offending. ZXC’s application for damages and injunctive relief was upheld at first instance by Nicklin J and £25,000 awarded: [2019] EWHC 970 (QB); [2019] EMLR 20. Bloomberg’s appear was dismissed (see Panopticon post by Robin Hopkins and [2020] EWCA Civ 611; [2021] QB 28.
On 7 December 2021, the European Court of Human Rights (the “Court”) published its judgment in Standard Verlagsgesellschaft MBH v Austria (No.3) regarding anonymity online. The Court found that the Austrian courts had violated the applicant’s right to freedom of expression by requiring the applicant to disclose the identities of those who had posted allegedly defamatory comments on its website. The Court’s judgment is a notable development of its case law regarding freedom of expression on the internet.
Legal and factual background
The applicant is the publisher of the Austrian Der Standarddaily newspaper published in print, digitally and online. At the end of each online article, registered users can post comments anonymously. When registering, users are warned that the applicant may disclose their data if required to do so by law. Users also accept the applicant’s Community Guidelines stating that users are responsible for their comments and that personal attacks, threats, abuse, or defamatory statements are prohibited. All comments are screened by a keyword identification programme before they can be posted. The applicant also operates a “notice and take down” system via which users can trigger a manual editorial review of comments by using a “report” button.
We are looking for 4 volunteers to form our ’rounder-upper’ team, responsible for creating our weekly legal ‘Round Up’ of cases. Each person would rotate so it only involves crafting one post a month. The round-up goes out first thing on a Monday, and consists of a summary of recent authorities and also broader issues which may have an impact on rights e.g. legislative developments, NGO or UN reports, political developments etc. The focus of the article is not to be a general news outlet per se, but to provide an update on important legal news and developments over the past week. The new rounder-up writers will be given assistance and guidance in finding their feet from the editorial team to assist them in the first few weeks in getting to grips with the job.
Please note that applications have now closed.
Examples
Here are some (randomly chosen) examples of recent round-up articles:
Our blog style guide, which although not specific to the round-up itself, is helpful to indicate the style we are looking for.
Benefit to law students
We have found in the past that GDL and other law students find writing the round-up a very useful way to stay on top of legal issues in the field of human rights. Further, it is an excellent thing to have on the CV and your LinkedIn. It provides the author with a certain level of profile given the blog’s large readership and so is likely to be very helpful to anyone applying for pupillages, particular at chambers with a public law bent. Many across the legal sector and beyond rely on the blog to keep up with developments in human rights law. In the past, rounder-up writers have tended to be recruited as pupils to very high calibre chambers. Also, former round-up writers are in a good position to ‘graduate’ into becoming contributors to the Blog in due course if they wish.
How to Apply
We are looking for authors who can succinctly but accurately summarise key authorities and other developments. We are therefore recruiting by asking those interested to send the following to Rosalind English events@1cor.com by9 am on 4th March 2022. Please include your name in the title of each document. We endeavour to contact every applicant but, due to application numbers, prioritise successful candidates.
A 250-word summary in Microsoft Word of the case of Secretary of State for the Home Department v NF [2021] EWCA Civ 17 (https://www.bailii.org/ew/cases/EWCA/Civ/2021/17.html). This summary should include a pithy explanation of the result of the case at the outset (do not leave the outcome to the end). We understand that it is challenging to distil a full judgment down into 250 words and are looking for a summary that succeeds in bringing out the key facts, the key legal principles and the fundamental reason(s) that the court decided the case in the way that it did. Any summary which exceeds 250 words will automatically be ineligible. Inclusion of the case name and citation at the start of the entry will not count towards the word limit.
“A Decent Death” is the title of an article written by former Court of Appeal judge Stephen Sedley, and published in the London Review of Books, to which Sir Sedley is a frequent contributor.
In Episode 158 of Law Pod UK, Rosalind English considers the points made by Sir Stephen in his erudite and forthright column with Trevor Moore, Chair of the assisted dying campaign My Death, My Decision.
With clips from Sir Stephen’s presentation of his talk, we consider the contradictions in the law which still renders assisted dying a criminal offence, but allowed Coronavirus restrictions to be lifted to enable people to travel to end their lives at Dignitas in Switzerland; the stressful possibility faced by relatives returning from Switzerland that they are at risk of being prosecuted under the 1961 Suicide Act, and the constant buck-passing of reforms to this Act between the courts and Parliament.
As Sir Stephen commented in his talk, the “historical anathema”, of punishing either unsuccessful suicides or their families, lives on in the undifferentiated crime of assisting a person to commit suicide.
The present-day offence fails – signally – to differentiate between the intervener who, out of self-interest or perversion, helps to ensure that a suicide attempt succeeds, and the individual who, out of compassion, gives a rational fellow being the help he or she needs to end a life that has become medically unbearable.
For those of you who have listened to this episode, here is another reflection from Sir Stepen, on the obligation on family members returning from Switzerland, to protect themselves from prosecution under the Suicide Act by reporting themselves to the police.
On self-incrimination, I think there’s possibly more to be said. The senior police officer or crown prosecutor whose desk the case reaches may be personally (even doctrinally) hostile and decide – armed now with a full ‘confession’ given in the hope of clemency under the DPP’s policy – to prosecute. In that event there is no defence of compassion; the jury may have to convict. I find this a terrifying scenario.
In a judgment handed down on 4 February 2022, the Court of Appeal dismissed an appeal for permission to apply for judicial review concerning the lawfulness of the England Infected Blood Support Scheme (EIBSS) (the “Scheme”). The Court of Appeal concluded that the Scheme’s exclusion of those infected with hepatitis B was not discriminatory. In any event, the Secretary of State’s justification for who was to be compensated under the ex gratia Scheme was to be given a wide margin of appreciation by the courts.
Background
CN
The Appellant, CN, suffers from hepatitis B virus (“HBV”) which he alleges he contracted when given blood transfusions on or after 14 April 1989. Consequently, CN has suffered from serious health problems, and was forced to abandon his business to receive medical treatment; he has been reliant on state benefits for the last 13 years. CN is a core participant in the ongoing infected blood inquiry, which was established to examine the circumstances in which NHS patients in the UK were given infected blood and blood products (read more about the Inquiry here).
In 1995, CN issued a civil claim against the NHS and the National Blood Authority (now the NHS Blood and Transplant Service). Despite obtaining expert evidence to the effect that his infection was obtained from infected blood, he had to discontinue his claim when legal aid was withdrawn.
Infected blood and the England Infected Blood Support Scheme (EIBSS)
The Scheme was set up on 1 November 2017, to provide ex gratia support to people historically infected with hepatitis C virus (“HCV”) and/or human immunodeficiency virus (“HIV”). Specifically, the 2017 Directions set out the EIBSS’s purpose as:
a scheme to make payments and provide support in respect of individuals infected with HIV or Hepatitis C (or both) from blood or blood products used by the NHS and to provide support to family members of such individuals.
The Scheme addresses the ongoing social issues concerning those infected and affected by HIV and HCV from unscreened products. The Scheme recognises a moral imperative to compensate those infected with HCV and HIV in circumstances where attempts to allege negligence against the NHS would run into significant difficulties of fault-based liability and evidential issues surrounding the state of scientific knowledge at the time. It also helps families and partners after the death of someone infected, who would otherwise be unable to make a civil claim.
Those infected with HBV do not fall within the remit of the Scheme. In basic terms, this is because the NHS screened blood and blood products for HBV from the mid 1970s, so the number of patients infected with HBV were low after screening. Within the Scheme, the cut-off date for HCV claims is September 1991, when screening was introduced. For HIV there is no cut-off, but the eligibility criteria make clear that after October 1985, when the NHS screened for HIV, it was very unlikely that HIV would be transmitted through infected blood.
In the news: Prime Minister Boris Johnson is expected to announce the removal of the last remaining COVID-19 restrictions this afternoon. It is expected that the legal requirement to self-isolate after testing positive will be scrapped alongside free PCR and lateral flow tests. Mr Johnson is set to announce the end of restrictions to be a “moment of pride”, although some groups have expressed concerns about the approach, including NHS leaders and the chair of the British Medical Association Dr Chaand Nagpaul, who said the decision “is not based on current evidence and is premature”.
The Welsh Parliament on Tuesday voted to withdraw consent for the British Nationality and Borders Bill, on the basis that reforms to methods for determining asylum-seeker age would undermine the Senedd’s legislative competence, as they related to a devolved matter. In a letter to Minister for Immigration Kevin Foster, the Welsh Minister for Social Justice outlined this and a further ten matters of concern for the Senedd. These included the establishing of Accommodation Centres, which she said would be “fundamentally incompatible with our Nation of Sanctuary approach”, and the fact that the UN Refugee Agency (UNHCR) has said that the Bill “is fundamentally at odds” with the UK’s obligations under the UN Refugee Convention.
This was an interesting ruling on the matter of standing, something that has fallen rather by the wayside since it formed the subject of much satellite litigation in the 1990s. In essence, the Court ruled that the GLP had no standing to bring this claim. Despite its articles of association, whose purposes include the provision of sound administration and equality, democracy, high standards in public administration, access to justice, preservation of the environment or “any other philanthropic or benevolent purpose ancillary”. Such a general statement of objects could not confer standing on an organisation:
That would be tantamount to saying that the GLP has standing to bring judicial review proceedings in any public law case. [58]
Arguments before the Court
The GLP and the Runnymede Trust brought a challenge to the government’s decision to appoint two individuals to head Covid projects such as the Test and Trace programme (Baroness Harding of Winscombe (Dido Harding) was one of the individuals named). Mike Coupe, Director of Testing, NHS Test & Trace, was the other.
The claimants contended that the government had a practice of appointing people to positions critical to the government’s response to the COVID-19 pandemic without open competition, that only candidates with some relevant personal or political connection to the decision-maker were appointed, and that, even though the positions to be filled were senior and strategically important, the person appointed was unpaid. The Claimants said this gave rise to indirect discrimination on grounds of race and/or disability. They made other complaints about the process used by the Defendants.
The Defendants disputed all these claims on their merits. In addition, they contended (a) that the matters complained of had now been overtaken by events rendering the claims academic, and that for that reason, the claims should not be determined by the court; (b) that the claims had been brought too late and should be dismissed for that reason; and (c) that the Claimants lacked standing to bring the claims. There was also one further matter, which the Court considered in the context of the standing issue, although it was conceptually distinct. That was whether the decisions challenged were amenable to judicial review. Each of the decisions challenged in these proceedings was an employment decision. Employment decisions, even when taken by public authorities, are not ordinarily challengeable by application for judicial review.
Richards is, at its core, a case about the proper relationship between the courts, regulators and third parties who engage in potentially hazardous activities, but the Claimant in the case was none of these. Rather, it was Mathew Richards, a 6-year-old boy who suffers from lung problems, recovery from which was inhibited by emissions of hydrogen sulphide gas from the Walleys Quarry Landfill Site which is situated near his home in Staffordshire. The central question was whether the Environment Agency (EA) had taken sufficient steps to discharge its legal duties to protect the Claimant.
In Richards, the Court of Appeal set aside a declaration of Fordham J in which he had spelled out in some detail the scientific and regulatory goals that the EA would have had to meet in their regulation of emissions from the landfill. It is an interesting case for several reasons: it is the first domestic case to consider the human rights standards applicable to regulators tackling present threats under article 2 ECHR (the right to life); it discusses the limits of judicial power in the context of specialist regulators; and it also addresses complex and important questions about the requirements for, and functions of, judicial declarations.
In the latest episode of Law Pod UK – number 157 – Emma-Louise Fenelon speaks to Jon Metzer about some of the most significant cases of last year. This episode covers:
Pwr v Director of Public Prosecutions [2022] UKSC 2 — judgment here
On 26 January 2022 the Supreme Court ruled that s.13(1) Terrorism Act 2000 (“TA 2000 “) is a strict liability offence and that, whilst it does interfere with Art.10 ECHR (freedom of expression), the interference is lawful, necessary and proportionate.
BACKGROUND
S.13 provides that it is a criminal offence for a person in a public place to carry or display an article “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The offence is summary-only and carries a maximum sentence of six months imprisonment.
The three appellants in this case, Mr Pwr, Mr Akdogan and Mr Demir were convicted in the Westminster Magistrates’ Court of an offence contrary to s.13 TA 2000. All three had attended a protest in central London on 27 January 2018. The protest concerned perceived actions of the Turkish state in Afrin, a town in north-eastern Syria. The convictions related to carrying a flag of the Kurdistan Workers Party (the Partiya Karkerên Kurdistanê (“the PKK”), an organisation proscribed under the TA 2000. Mr Pwr and Mr Akdogan were given three-month conditional discharges. Mr Demir received an absolute discharge.
The Metropolitan Police have been criticised for their request to Sue Grey not to prejudice their investigation into parties held at Downing Street during lockdown. Ms Grey has yet to publish her report into the parties, but a “heavily redacted” version is expected “imminently” according to the Guardian. The Met requested the report to make “minimal reference” to the parties, not that it be delayed or otherwise limited, but it has caused some to question the motives and/or competence of the police. It is possible that their investigation will go beyond current public knowledge and if criminal charges result in a jury trial the police do have to ensure potential jurors are not prejudiced. On the other hand, human rights barrister Adam Wagner has questioned why a civil service report on alleged breaches of Covid regulations would prejudice a police investigation.
In other news:
The Equality and Human Rights Commision (EHRC) has come under fire from LGBTQ+ campaigners and Scottish First Minister Nicola Sturgeon for its response to the Scottish government’s plans to simplify the process for legal gender recognition, and the UK government consultation on banning conversion therapy. The EHRC said “more detailed consideration is required before any change is made” to the Gender Recognition Act 2004. Ms Sturgeon noted that this was a “significant change in position” for the EHRC and that she was concerned that the Commission’s response “doesn’t accurately characterise the impact of the Bill.” In its response to the consultation on conversion therapy, the EHRC said that a ban should initially focus on attempts to change sexual orientation, while a ban on “conversion therapy attempting to change a person to or from being transgender should follow, once more detailed and evidence-based proposals are available”. A clause to allow “informed consent” to conversion therapy in the Conversion Therapy (Prohibition) Bill has been condemned by activists but was not criticised in the EHRC’s response. LGBTQ+ charity Stonewall said the EHRC’s response disregarded the expert opinion on of the UN Independent Expert on Sexual Orientation and Gender Identity and violated the ‘Paris Principles’ of promoting and protecting human rights as a UN-accredited National Human Rights Institution.
The Joint Committee on Human Rights has launched its investigation into proposals to reform the Human Rights Act. The Committee will examine government proposals to replace the Human Rights Act with a “Bill of Rights”, which would reduce the impact that case law from European Court of Human Rights has on domestic law.
In the courts:
Pwr (Appellant) v Director of Public Prosecutions (Respondent) and Akdogan and another (Appellants) v Director of Public Prosecutions (Respondent) [2022] – this case concerned section 13(1) of the Terrorism Act 2000, which makes it a criminal offence for a person to display an article in public, in a way that arouses “reasonable suspicion that he is a member or supporter of a proscribed organisation”. The appellants had carried flags of the Kurdistan Workers Party (the PKK), a proscribed organisation, at a demonstration. The Supreme Court dismissed their appeals, finding that section 13(1) is: a) a strict liability offence, such that there is no necessary mental element beyond the defendant knowing they are displaying the relevant article; and (b) compatible with article 10 of the European Convention of Human Rights (ECHR). Section 13(1)’s interference with the Article 10 right to freedom of expression is justified by being prescribed by law; in pursuit of legitimate aims; and necessary in a democratic society and proportionate to its legitimate aims.
R (Binder, Eveleigh, Hon and Paulley) v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin) – the High Court allowed a judicial review claim by four disabled adults and granted a declaration that the government’s National Disability Strategy is unlawful. While there was no common law or statutory duty on the defendants to consult before publishing the Strategy, the Court held that their “UK Disability Survey” amounted to a voluntary consultation (which the defendant denied), and as such the common law principles of consultation fairness (“the Gunning principles”) applied. The Survey breached the second Gunning principle to “enable intelligent consideration and response” due to its lack of information (it did not outline or allow for comments on specific policy proposals), and format (the questions were all multiple choice except four open-ended questions with word-limits). The Court rejected the Claimants’ additional submission that the defendant breached the Public Sector Equality Duty per section 149 of the Equality Act 2010.
R (D4) (Notice of Deprivation of Citizenship) v Secretary of State for the Home Department [2022] EWCA Civ 33 – ‘D4’ was a British and Pakistani dual citizen who has been detained at a camp in Syria for three years. On 27 December 2019 she was deprived of her British citizenship under Regulation 10(4) of the British Nationality (General) Regulations 2003, which permits the Home Secretary to “serve notice” of a deprivation of British citizenship merely by putting the notice on a person’s Home Office file. On 28 September her solicitors requested the Foreign Office’s assistance in repatriating and it was then that the deprivation of her citizenship was first communicated to either D4 or her advisors. This case was a judicial review of Regulation 10(4) and the Court of Appeal found the regulation ultra vires; it went beyond the Home Secretary’s powers under the British Nationality Act 1981 and was therefore unlawful. However, if the Nationality and Borders Bill is passed, it will remove the requirement to give notice if it is “in the public interest” and will apply to this case retrospectively, effectively making lawful D4’s deprivation of citizenship without personal notice. (see last week’s round-up for more on deprivation of citizenship)
On the UKHRB:
Nicola Barker looks at the Independent Human Rights Act Review and the proposed Bill of Rights
Sapan Maini-Thompson asks whether “perception-based recording” of hate crimes is compatible with freedom of speech
The Appellant, Harry Miller, succeeded in this appeal. Image: The Guardian
In R (Harry Miller) v The College of Policing [2021] EWCA Civ 1926, the Court of Appeal ruled that current police guidance on the recording of ‘hate incidents’ unlawfully interferes with the right to freedom of expression. The decision overturns a 2020 ruling by the High Court in which Mr Miller’s challenge to the lawfulness of the Hate Crime Operational Guidance was dismissed (discussed previously on this Blog here).
Facts
The central issue raised in the appeal is the lawfulness of certain parts of the Hate Crime Operational Guidance. The Guidance, issued in 2014 by the College of Policing, sets out the national policy in relation to the monitoring and recording of what are described as “non-crime hate incidents”. At the root of the challenge is the policy of “perception-based recording”, which states that non-crime hate incidents must be recorded by the police as such (against the named person allegedly responsible) if the incident is subjectively perceived by the “victim or any other person to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender” and irrespective of any evidence of the “hate” element.
Mr Miller, who is described as having “gender critical” beliefs, was reported to Humberside Police by Mrs B in January 2019 for posting comments on his Twitter account, which she asserted were “designed to cause deep offence and show his hatred for the transgender community.” Whilst there was no evidence of a criminal offence, the incident was recorded as a “hate incident” and Mr Miller was visited at work by a police officer who told him to “check his thinking.” Mr Miller subsequently brought a claim for judicial review.
Do they have anything in common? Relatively little, says Nicola Barker, Professor of Law at the University of Liverpool.
When the IHRAR was announced by Robert Buckland in December 2020, it was accompanied by some of the usual rhetoric about the courts “rewriting” legislation, but the more hyperbolic claims about foreign criminals and pet cats were absent. The Terms of Reference given to the IHRAR were relatively narrow and the Call for Evidence emphasised that it was ‘not considering the substantive rights set out in the Convention’. Instead, the Review was to focus only the operation of the HRA under two themes: the relationship between domestic courts and the ECtHR; and the impact of the HRA on the relationship between the three branches of the state.
However, in its consultation document, the government’s language once again carries echoes of the pet cat oeuvre with a stance premised on the idea of a ‘broader public interest’ that must be ‘safeguarded’ (para 182) from the HRA. In this, they are articulating a problem that lies not so much with the HRA’s impact on the separation of powers and Parliamentary sovereignty (though those remain too) but with ‘the way in which [Convention] rights have been applied in practice’ (para 184). In other words, the focus is back on how to prevent rights from benefitting the ‘undeserving’ and how to forestall further development of rights through the ‘living tree’ doctrine.
Given that the Review was only commissioned a year ago it is unfortunate to see several reforms proposed in the government’s consultation that could have usefully been included within the remit of the Review but were omitted from the Terms of Reference, not least the proposals in relation to section 6. The government propose to expand the exception in section 6(2)(b) (that applies where a public authority was giving effect to primary legislation that could not be read or given effect in a way that is compatible with Convention rights) to include circumstances where the public authority is giving effect to the clear intentions of Parliament (para 274). This proposal is based on the premise that section 6 has created ‘confusion and risk aversion for frontline public services’ (para 132-140) and undermined public protection as the police and armed forces ‘find operational decisions challenged’ and ‘have a court retrospectively second-guess their professional judgement exercised under considerable pressure’ (para 142). It is regrettable that the Review was not able to consider the accuracy of the premise underlying such potentially far-reaching reforms, which could significantly undermine individual rights protection in the UK.
The more substantive questions of the balance between speech and privacy, between rights and responsibilities, limiting access to Convention rights in the context of deportation, and whether a specific right to jury trial is necessary, could also have been usefully informed by the extensive research, in-depth discussion with a variety of stakeholders, and objective analysis that were characteristic of the Review.
The table below maps the government’s proposals for a new Bill of Rights on to the recommended and not recommended/rejected options in the IHRAR report. The government makes around 40 proposals, though some present alternative options rather than separate and distinct proposals. Green text indicates where the government’s proposals broadly match a recommendation of the IHRAR, while red text indicates that the government are proposing something that the Review explicitly or implicitly cautioned against. Sometimes the proposals do not map in exactly the terms recommended or rejected by the Review, but I have matched them as closely as possible with the language used by each. For example, where the government proposals refer to ‘enabling’ UK courts to take account of case law from other jurisdictions and international bodies (a power they already can and do exercise), the Review did not consider affirming this existing power but rejected ‘requiring’ them to consider such case law. As the table illustrates, the government’s proposals bear little resemblance to the recommendations made by the IHRAR panel. More of the government’s proposals are ideas that were rejected by the Review than were recommended by it and around half of the government’s proposals were not considered by the Review at all, in most cases because they were outside of its Terms of Reference.
The Independent Review recommended first, and in my view most importantly, that there should be more public education about the UK constitution and HRA in schools, universities, and adult education. The Review itself could form the basis of that education. It is a thorough and clear exposition of the Act, its interpretation and use by the Courts, and its impact on the separation of powers, Parliamentary sovereignty, and the relationship between the UK and Strasbourg. However, the government appears to have ignored this recommendation and in general the Review appears to have asserted little influence on the government’s proposals.
On Friday, the Guardian reported on the earlier Freemovement.org quantitative analysis relating to deprivations of British citizenship. While it has been known and reported upon for some time, the analysis demonstrates a continued trend of increased deprivations, with a significant peak in 2017, when the number of people whose citizenship was removed soared by 600%.
Protected by Article 15 of the 1948 Universal Declaration of Human Rights following the Second World War, the right to a nationality was described by Hannah Arendt as the very ‘right to have rights’. Nationality underpins individuals’ belonging to states, which can be the only true guarantors of individual self-governance through the medium of inalienable rights.
Prior to 2006, the power to remove citizenship had not been used since 1973. Now, strengthened by the Immigration, Asylum and Nationality Act 2006, which allowed the UK government to order deprivation of citizenship against its citizens where it believes it is ‘conducive to the public good’, 175 people have had their citizenship removed on national security grounds, and 286 due to fraud (even though the latter power relating to fraud was already enshrined in s.40 of the British Nationality Act 1981). The additional power to render individuals stateless was introduced by the Immigration Act 2014, under which the Secretary of State may remove citizenship where she has reasonable grounds for believing that the person deprived ‘is able’ to become a national of another country. This was most visibly achieved in the case of Shamima Begum, considered extensively on the UK Human Rights Blog.
The Court of Appeal dismissed a set of claims for psychiatric injury on the basis of prior binding authority, but indicated that the issue is suitable for consideration by the Supreme Court.
Background
The judgment concerns three linked appeals regarding the circumstances in which relative(s) of somebody injured or killed by alleged clinical negligence (the secondary victim(s)) can claim damages in respect of a psychiatric disorder caused by having witnessed the death or suffering of their loved one (the primary victim).
For a defendant to be liable for a secondary victim’s psychiatric illness, the claimant needs to show the necessary legal proximity between themselves and the defendant. In Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310, Lord Oliver identified five elements which form the essential requirements of such a relationship:
the secondary victim is in a marital/parental relationship with the primary victim;
the psychiatric illness for which damages are claimed arises from a sudden and unexpected shock to the secondary victim’s nervous system;
the secondary victim was personally present at the scene of the accident or was in more or less the immediate vicinity and witnessed the aftermath shortly afterwards;
the psychiatric illness arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim; and
there was not only an element of physical proximity to the event but a close temporal connection between the event and the secondary victim’s perception of it.
These elements were applied in Crystal Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194. The secondary victim claim of a daughter who witnessed her mother’s death three weeks after an accident at work in which negligently stacked racking boards fell on her failed despite her death having been caused by the accident. The Court of Appeal held that as she was not present at the accident, she lacked the necessary legal proximity.
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