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An NHS Trust v SR [2012] EWHC 3842 (Fam) – read judgment
The highly publicised case about a seven year old boy whose estranged parents could not agree about the necessary treatment following surgery for his brain tumour was resolved by a firm ruling in favour of orthodox medicine by Bodey J, four days before Christmas.
The facts of the case are well known, but it may be instructive to lay out some of the details of the procedure that follows in a situation like this, and to point up the approach of the courts to a matter where orthodox science lies flat against the claims of complementary medicine. Where the life of a child is at stake, there is no polite equivocation between the two.
Background
Briefly, the mother would not agree to the recommended post-operative course of chemo- and radiotherapy (carrying an 80% chance of success), believing instead that her son would fare better with alternative forms of treatment and would avoid or reduce the undoubtedly detrimental long-term side effects of the treatment package being proposed. In a serious matter such as this, where the parents cannot agree, an application has to be made to the court for a declaration that the procedure in question is lawful. That involves a decision as to the child’s best interests, being the court’s paramount consideration. Hence it was incumbent on the NHS Trust concerned to apply to the High Court to determine the issue of N’s treatment following on from his brain surgery two months previously. Continue reading →
2011 may be remembered as the year of Article 8. The public may not realise it, but the two major news stories of this year have had at their core the 8th article of the European Convention on Human Rights, the right to privacy and family life. And without this controversial law, the phone-hacking scandal may never have been exposed.
First came the super-injunctions scandal, in which the public, egged on by the popular press, became enraged at sportsmen using expensive privacy injunctions to keep details of their alleged bad behaviour out of the news. That scandal has now been replaced by a much bigger one, relating to illegal phone hacking. The affair has already led to the demise of the News of the World.
As the human rights organisation Liberty have pointed out, the newspaper was never a fan of New Labour’s Human Rights Act. Amongst other things, it fought an expensive and partially successful privacy battle against Max Mosley over claims that he slept with prostitutes in a “sick Nazi orgy“. It has always been suspected that the tabloid press’s almost universal antipathy towards the 1998 Act, which in theory at least should be popular as it protects citizens against nasty state intrusion, was inspired by the fear that the privacy rights it bolstered, despite the competing right to freedom of expression, would prevent them doing their jobs. And now, with some irony, it is a tabloid newspaper and not a public authority which may represent the 1998 Act’s most high-profile scalp.
A pro-choice rally in Belfast in 2021. Photograph: David Young/PA
Introduction
Abortion in Northern Ireland has had a fraught and frequently distressing history. Until 2019 when the UK Parliament reformed the law, the jurisdiction had the most restrictive approach to abortion in the UK. But even this reform has not reformed the reality, either for those seeking abortion services or information and counselling on such services or for those who work at providers of such services lawfully. I have previously written about the situation as it stood in March 2021, and the reality has changed little since then, with two notable exceptions. In March 2022, the Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) Bill (Northern Ireland) (‘SAZ Bill’) to create buffer zones around lawful abortion providers, in an attempt to criminalise the harassment and intimidation of people who seek or work in such places. On 2 December 2022, tired of the glacial pace and political controversy in commissioning abortion services, the Secretary of State for Northern Ireland moved to commission such services himself. In the interim, the Attorney General for Northern Ireland (‘AGNI’) referred the SAZ Bill to the UK Supreme Court to determine whether it was lawful.
But the SAZ Reference also drew another ECHR issue to the Court’s attention: the assessment of proportionality and reasonable excuse defences in criminal trials involving protests. The main points here were the consideration of the Court’s previous judgment in Ziegler and the judgment of the Divisional Court (England and Wales) in Cuciurean. Unusually for a devolution reference, therefore, the Supreme Court sat as a panel of seven Justices. The SAZ Reference judgment was unanimous and authored by Lord Reed.
Department of Health v. Information Commissioner et al [2015] UKUT 159, 30 March 2015, Charles Jread judgmentSimon Lewis requested that the Department of Health supply him with copies of the ministerial diary of Andrew Lansley from May 2010 until April 2011, via a Freedom of Information request. Mr Lewis’s interest in all this is not revealed in the judgment, but I dare say included seeing whether the Minister was being lobbied by private companies eager to muscle in on the NHS in this critical period. But such is the nature of FOIA litigation that it does not really look at the motive of the requester – and this case does not tell us what the diary showed. Indeed by the time of this appeal, Lewis was untraceable, and the burden of the argument in favour of disclosure was taken up by the Information Commissioner. The real interest in this decision is in Charles J’s robust agreement with the First Tier Tribunal that the information should be disclosed. In so doing, he fully endorsed the criticisms made by the FTT of the eminent civil servants who gave evidence before the FTT – in trenchant terms, as we shall see. He also gave an interesting account of how the public interest qualification should be applied in response to FOIA requests. Continue reading →
Access to environmental justice is as topical asever. Delegates at the recent conference of the United Kingdom Environmental Law Association (UKELA), held in late June at UEA in Norwich (yards from the Climatic Research Unit much in the news) argued that the current regime in this country is unsatisfactory – because of the cost, but also, and less predictably, because of a lack of basic fairness.
One QC who specialises in planning law pointed to the fact that a developer who is dissatisfied with a planning decision can appeal it, but an affected third party (often a disgruntled resident) cannot. He commented off the record that in his experience both as an advocate and as a decision-maker, decisions were affected by the knowledge that developers could readily challenge refusals, whereas third parties could not challenge grants other than by way of judicial review.
The criminal justice system is “close to breaking point”, according to a report released by the House of Commons Public Accounts Committee (PAC) last week, Efficiency in the Criminal Justice System. The report finds that the criminal justice system is “bedevilled by long standing poor performance” including delays and inefficiencies, where costs are shunted from one part of the system to another.
Last year there was a backlog of 51,830 cases awaiting a hearing at the Crown Court. The average wait between a case leaving the Magistrates’ Court and reaching the Crown Court is 134 days, compared with 99 days two years ago. The “disjointed” nature of the system – which is administered by different parts of government with different budgets – results in decisions taken by one part increasing inefficiencies in another area. The service received by victims and witnesses is not good enough, and there are “unacceptable variations” in the length of time victims have to wait for access to justice in different areas of the country.
The report unequivocally concludes that the Ministry of Justice has been “too slow” to recognise that the system is under stress and to do anything about it. The MoJ has exhausted the scope to cut costs without pushing the system beyond breaking point – since 2010-11, the criminal justice system has suffered a massive 26% cut. Even if courts sit on all days in their allowance, there are still not enough judges to hear all the cases. Since the criminal bar has reduced in size as a result of reductions in legal aid spending, the CPS struggle to find counsel to prosecute cases.
Though the MoJ have developed an “ambitious” reform programme which aims to address the inefficiencies in the system, partly through digitising paper records and enabling flexible digital working, the PAC were told it would take four years to see the benefits. Court users should “not have to wait this long to see real change”, they say, noting that “Government does not have a good track record of delivering projects that involve significant changes to IT”. They recommend that the MoJ do more in the meantime by better sharing the small practical improvements introduced by hard-working staff in individual courts.
The Bar Council have said in response to the report that while it sends an “important message” to the Government, the proposed digitisation reforms are not enough to address the challenges faced by the system. The “precious asset” of Justice should be ring-fenced from cuts.
Other News
The Supreme Court last week upheld the decision of the Court of Appeal in finding that British expatriates of more than 15 years are not eligible to vote in the EU referendum on 23 June. Harry Shindler, 95, who has resided in Italy for 35 years, and Jacquelyn MacLennan, 54, who has lived in Belgium since 1987, had argued unsuccessfully that the 15-year rule contained in Section 2 of the EU Referendum Act 2015 was an unjustified restriction on their freedom of movement, in that it penalised them for exercising their right to move and reside in another Member State. Lady Hale, Deputy President of the Supreme Court, emphasised that the relevant question was not whether the voting exclusion was justifiable as a proportionate means of achieving a legitimate aim, but rather whether European Law applied at all, since only if it did was there any possibility of attacking an Act of Parliament. Assuming for the sake of argument that it did apply, the Supreme Court decided that it was not arguable that there was an interference with the right of free movement, for the reasons given by the Court of Appeal and Divisional Court. See David Hart QC’s previous post on the Court of Appeal decision here.
An inquest has found that police unlawfully detained a 22-year-old man with mental health issues who was later found hanged. Logan Peters had been held in an unauthorised headlock and illegally strip-searched by police who stopped him on suspicion of criminal damage at a takeaway. The inquest heard that whilst in his cell Mr Peters had battered the walls with his head and tried to strangle himself, but was considered “attention-seeking” rather than suicidal. There was no plan put in place for his care following his release. The panel concluded there were “errors, omissions, failures” in the way Mr Peters was seized on the street, finding that it was “extremely likely” that the events and the “unreasonable, disproportionate and unnecessary force used… had a negative impact on Logan’s physical and psychological well-being”. This follows several high profile failings by police to look after people with mental health issues whilst in custody, such as the death Sarah Reed at Holloway prison earlier this year and Sheldon Woodford at HMP Winchester in 2015.
In the Courts
IC v Romania – the inadequacy of the investigation into a young girl’s allegation of rape was a violation of Article 3 (prohibition of inhuman or degrading treatment). A 14-year old girl with an intellectual disability had alleged that whilst at a wake she had been grabbed by three teenage boys who took her to a man, MC, waiting in the garden of a deserted building, who then raped her. Two other men were also present. During the police investigation the six men involved claimed the girl had consented to the intercourse. The prosecutor accepted this explanation, indicting MC only for sexual intercourse with a minor. The Court held that the authorities had put undue emphasis on the lack of proof that the girl had shown resistance during the incident. The prosecutors had based their conclusions on the statements given by the alleged rapists along with the fact that the girl’s body did not show any signs of violence and she had not called for help. The Romanian authorities had failed to give particular attention to IC’s intellectual disability, in light of which her ‘consent’ to the acts should have been analysed.
Biao v Denmark – The Court held in this case that Danish legislation on family reunion is discriminatory, finding a violation of Article 14 in conjunction with Article 8 (right to respect for private and family life). The applicant was a naturalised Danish citizen of Togolese origin who complained that he and his Ghanaian wife could not settle in Denmark. The Danish authorities had refused to grant them family reunion on the basis that they did not fulfil the “attachment” requirement that they did not have stronger ties with another country – Ghana, in this case. They complained that an amendment to the legislation which lifted the “attachment requirement” for those who had held Danish citizenship for at least 28 years resulted in difference in treatment between those born Danish nationals and those who had acquired Danish citizenship later in life. The Court held that this rule favoured Danish nationals of Danish ethnic origin, and placed those who had acquired Danish citizenship later in life at a disadvantage.
The Overseas Operations (Service Personnel and Veterans) Bill is currently progressing through Parliament. Billed as one of the most controversial pieces of legislation in recent years, it was anticipated that the Second Reading in late September would be a fiery encounter. While it may have lived up to this billing, the outcome was more of a damp squib. With the government assisted by a whip to abstain from the Labour benches, the reading passed with 331 votes in favour to 77 against.
This post reflects not so much on the content of the Bill, which has been explored in excellent detail here, here and here but instead on how the nature of the debate was influenced by its central subjects being ‘folk heroes’ in the form of members of the UK’s armed forces, and the increasing attempt to cast members of the legal profession who seek to hold the state to account as ‘folk villains’. Induced by the various passions and allegiances associated with this proposed legislation, the presence of these adversaries obfuscated other important considerations in the debate: most notably, the law.
This was one of those deeply troubling cases where there was disagreement amongst the family members over whether their incapacitated brother/father should continue with clinically assisted nutrition and hydration. One brother had applied for ANH to be discontinued, but because of the objections of the patient’s son, it was said that he would “continue to be cared for by nursing staff”.
As Hayden J observed, this was a “troubling non sequitur”:
Family dissent to a medical consensus should never stand in the way of an incapacitated patient’s best interests being properly identified. A difference of view between the doctors and a family member should not be permitted to subjugate this best interest investigation.
This particular hearing was ex post facto: in 11th June 2021, Hayden J delivered an extempore judgment in which he indicated why the continued provision of nutrition and hydration to GU, in the manner outlined above, was contrary to GU’s interests. However, having concluded that it was not in GU’s best interests to continue to receive CANH at the hearing on 11th June 2021, he considered it was necessary to afford RHND the opportunity of explaining what had happened. Amelia Walker of 1 Crown Office Row represented the hospital in these proceedings.
DL v A Local Authority & Others [2012] EWCA Civ 253 – Read judgment
Where adults have capacity under the Mental Capacity Act 2005 (MCA 2005), does the “great safety net” of the High Court’s inherent jurisdiction still exist to guard them from the effect on their decision making of undue influence, coercion, duress etc? In its judgment handed down on 28 March 2012, the Court of Appeal confirmed that it does.
DL proceeded in the High Court and the Court of Appeal on assumed (as opposed to agreed) facts, many if not all of which were contested by the appellant. For the court’s purposes however, it was assumed that DL, a man in his 50s who lived with his mother and father (90 and 85 respectively), had behaved aggressively towards his parents, physically and verbally, controlling access to visitors and seeking to coerce his father into transferring ownership of the house into DL’s name, whilst pressuring his mother into moving into a care home against her wishes. The Court of Appeal’s judgment uses the term “elder abuse” for such a situation.
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
This morning, the Joint Committee on the Draft Investigatory Powers Bill issued a 200-page report on the draft new law. It’s the next step in the scrutiny of a foundational piece of UK national security law – capabilities and safeguards on internet surveillance. The Report is remarkable and comprehensive work – not least because it was done in a few short months. The Committee has made no fewer than 86 recommendations for how the Bill can be improved.
On 29 March 2017, Theresa May’s Article 50 letter of notice was delivered to Donald Tusk, thereby formally triggering the Treaty-based process for the UK’s withdrawal from the EU. The question remains: is this trajectory irreversible, or can the UK rescind its notification?
While the legal arguments in favour of Article 50’s revocability have already been raised repeatedly in academic discourse, they now merit reconsideration. The results of the UK general election on 8 June have brought about a substantive change of circumstances, and the notion of Breverse no longer seems relegated to the realms of academic hypotheticals. This post explores the legal reality of revocability as a matter of UK constitutional, EU and international law, before considering how the current political situation interacts with this.
Conway, R (on the application of) v Secretary of State for Justice [2018] – read judgment
A man suffering from motor neurone disease has been refused permission to appeal to the Supreme Court in his bid to be allowed to choose when and how to die. He is now wheelchair bound and finds it increasingly difficult to breathe without the assistance of non-invasive mechanical ventilation (NIV). His legal campaign to win such a declaration, on his own behalf and others in a similar position, has met with defeat in the courts (see our previous posts on Conway here,here and here). As the Supreme Court noted in their short decision, Mr Conway
could bring about his own death in another way, by refusing consent to the continuation of his NIV. That is his absolute right at common law. Currently, he is not dependent on continuous NIV, so could survive for around at least one hour without it. But once he becomes dependent on continuous NIV, the evidence is that withdrawal would usually lead to his death within a few minutes, although it can take a few hours or in rare cases days.
But Mr Conway doesn’t see this as a solution to his difficulties, since he cannot predict how he will feel should ventilation be withdrawn, and whether he will experience the drowning sensation of not being able to breathe. Taking lethal medicine, he argued, would avoid all these problems.
In his view, which is shared by many, it is his life and he should have the right to choose to end it in the way which he considers most consistent with his human dignity.
NHS Trust v Y (by his litigation friend, the Official Solicitor) and Others, Supreme Court 30 July 2018 – read judgment
The question for the Court was a simple but important one: whether the permission of a court was always required by law before doctors could withdraw feeding from a person in a persistent vegetative state.
Background
The patient at the heart of this case, known only as Y, had been an active man in his 50s before suffering a cardiac arrest which led to severe brain damage. He never regained consciousness and needed to be fed through a tube (known technically as “clinically assisted nutrition and hydration” or “CANH”) to stay alive.
Doctors had determined that Y was suffering from a “prolonged disorder of consciousness”known as “PDOC”.PDOC covers those who are in a persistent vegetative state and also those in a minimally conscious state, what we might informally call a coma. Continue reading →
R (on the Application of the Counsel General for Wales) v Secretary of State for business, Energy and Industrial Strategy [2022] EWCA Civ 118
The Court of Appeal decision handed down on 9th February 2022 is an important case concerning devolved powers.
The judgement concerns an application for permission to apply for judicial review made by the Counsel General for Wales to seek a declaration in the following terms:
The amendment of Schedule 7B of GoWA by section 54(2) of UKIMA, to add UKIMA to the list of protected enactments, does not amount to a reservation and does not operate so as to prevent the Senedd from legislating on devolved matters in a way that is inconsistent with the mutual recognition principle in UKIMA.
The application was dismissed, and the appellant appealed on the grounds that the Divisional Court was wrong to refuse permission on the grounds of prematurity.
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An NHS Trust v SR [2012] EWHC 3842 (Fam) – read judgment
2011 may be remembered as the year of Article 8. The public may not realise it, but the two major news stories of this year have had at their core the 
DL v A Local Authority & Others [2012] EWCA Civ 253 – 
NHS Trust v Y (by his litigation friend, the Official Solicitor) and Others, Supreme Court 30 July 2018 – 
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