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ABC v Thomson Medical Pte Ltd and others, Singapore Civil Court of Appeal [2017] SGCA 20 – read judgment
It is a trite reflection that law should change with the times but every so often we see the hair-pin bends in law’s pursuit of modern technology. This case from Singapore about reproductive rights and negligence in an IVF clinic is just such an example. As the judge said at the outset, the need for the law to adjust itself to the changing circumstances of life is clearest in the area of medical science,
where scientific advancement has made it possible for us to do things today which would previously have been unimaginable a few decades ago. This has brought untold prosperity to many, and hope to those who previously had none; but it has also given us greater capacity for harm.
Background facts
The Appellant, a Chinese Singaporean, and her husband, a German of Caucasian descent, sought to conceive a child through in-vitro fertilisation . The Appellant underwent IVF treatment and delivered a daughter, referred to in the judgment as “Baby P”. After the birth of Baby P, it was discovered that a serious mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown Indian third party instead of sperm from the Appellant’s husband. It turned out that the clinic had processed two semen specimens inside one laminar hood at the same time and failed to discard the disposable pipettes that had been used after each step of the IVF process. This had resulted in a baby being born on 1 October 2010, whose DNA did not match her father’s. Continue reading →
Regina v Smith & Others [2011] EWCA Crim 1772 Read Judgment
UPDATED NOVEMBER 2013 | In a detailed judgment, the Court of Appeal has emphasised the importance of a sentencing court considering whether making a Sexual Offences Prevention Order is necessary and, if so, tightly drafting its terms to be proportionate and not oppressive.
The Court of Appeal (Criminal Division) also made clear that a total ban on internet use would always be disproportionate. It considered four cases in which the terms of the Sexual Offences Prevention Order [‘SOPO’] were challenged by the Appellants, none of whom had been charged with offences involving physical sexual contact.
The powers of the Court in relation to SOPOs are contained in ss. 104 -113 of the Sexual Offences Act 2003 [‘SOA 2003’]. A SOPO contains specific prohibitions designed to protect the public from serious sexual harm and remains in effect for the period specified in the order. The order prohibits the offender from doing anything contained in the order and accordingly they contain only restrictions, but no affirmative duties. Breach of any of the restrictions is a criminal offence carrying up to five years’ imprisonment and a SOPO may be in place for many years. As such, a SOPO could have a draconian effect on an offender for a substantial period of time.
Principles
When may a Court grant a SOPO?
The Court noted that whist a SOPO was a valuable tool in the control of sexual offending, as had been noted in R v R & C [2010] EWCA Crim 907, they were often too hastily and inadequately drafted and provided at a late stage in the sentencing process. Whilst the SOPO offered a flexibility in drafting, the court warned that:
The flexibility of the order, however, must not lead draftsmen to an inventiveness which stores up trouble for the future. It will do this if it creates a provision which is, or will become unworkable.That may be because it is too vague or because it potentially conflicts with other rules applicable to the defendant, or simply because it imposes an impermissible level of restriction on the ordinary activities of life. The SOPO must meet the twin tests of necessity and clarity. The test of necessity brings with it the subtest of proportionality.”
The Court reminded future sentencing courts that an SOPO may only be made under section 104(1) if the court is:
…satisfied that it is necessary to make such an order for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.”
Serious sexual harm differs from sexual harm so a SOPO may not be used to prohibit unusual, or even socially unacceptable, sexual behaviour unless it is likely to lead to the commission of offences set out in Schedule 3 of SOA. The risk of such serious sexual harm must real and not remote.
Further, clarity is important, not only for the offender but also for those who must deal with him in real life and those who must enforce the Order and to avoid the real risk of unintentional breach.
What must a Court consider when making a SOPO?
The Court reiterated that the three questions identified by the Court of Appeal in R v Mortimer [2010] EWCA Crim 1303 must be addressed when making a SOPO:
Is the making of an order necessary to protect from serious sexual harm through the commission of scheduled offences ?
If some order is necessary, are the terms proposed nevertheless oppressive?
Overall are the terms proportionate?
Interaction with other sentencing regimes:
The Court also reminded sentencing courts that when considering the imposition of SOPOs, a defendant convicted of sexual offences is likely to be subject to at least three other relevant regimes. The statutory test of necessity is not met if a SOPO merely duplicates such a regime. A SOPO must not interfere with such a regime. The following regimes must be considered:
The sex offender notification rules;
Disqualification from working with children; and
Licence on release from prison.
Additionally, the Court considered that the usual rule ought to be that an indeterminate sentence needs no SOPO, at least unless there is some very unusual feature which means that such an order could add something useful and did not run the risk of undesirably tying the hands of the offender managers later. The prevention of further offences should be left to the fixing of licence conditions as part of the indefinite sentence.
Further, it would not normally be a proper use of the power to impose a SOPO to use it to extend notification requirements beyond the period prescribed by S.82 of SOA 2003. It does not follow, however, that the duration of a SOPO ought generally to be the same as the duration of notification requirements. Although the SOPO must operate in tandem, notification requirements and the conditions of a SOPO are different. The first require positive action by the defendant, who must report his movements to the police. The second prohibit him from doing specified things. Ordinarily there ought to be little or no overlap between them. There is therefore no objection for an SOPO to extend beyond the notification requirements and it is also permissible in law for the SOPO to run for less than an indefinite period even when the notification requirements endure forever.
Extent of the SOPO: Computer Use and Internet Access
The court considered the difficult question of limiting access to computer use in light of the “explosion of everyday internet use by a very large proportion of the public”. The Court noted that a blanket ban on internet access was impermissible as:
It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of everyday living for a large proportion of the public, as well as a requirement of much employment. Before the creation of the internet, if a defendant kept books of pictures of child pornography it would not have occurred to anyone to ban him from possession of all printed material. The internet is a modern equivalent.”
The Court went on to consider the formula in R v Hemsley [2010] EWCA Crim 225, which restricts internet use to “job search, study, work, lawful recreation and purchases”. It considered that whilst such a formula has its attractions, it suffered from the same flaw, albeit less obviously, because it did not reflect modern internet usage or provide for future technological development:
Even today, the legitimate use of the internet extends beyond these spheres of activity. Such a provision in a SOPO would, it seems, prevent a defendant from looking up the weather forecast, from planning a journey by accessing a map, from reading the news, from sending the electricity board his meter reading, from conducting his banking across the web unless paying charges for his account, and indeed from sending or receiving Email via the web, at least unless a strained meaning is given to ‘lawful recreation’. The difficulties of defining the limits of that last expression seem to us another reason for avoiding this formulation. More, the speed of expansion of applications of the internet is such that it is simply impossible to predict what developments there will be within the foreseeable lifespan of a great many SOPOs, which would unexpectedly and unnecessarily, and therefore wrongly, be found to be prohibited.
Some courts have been attracted to a prohibition upon the possession of any computer or other device giving access to the internet without notification to the local police. Most defendants, like most people generally, will have some devices with internet access, so such a requirement woud be both onerous and add little of any value.
There is no need for the SOPO to invest the police with powers of forcible entry into private premises beyond their statutory powers.
The court considered that of all the formulas so far devised:
the one which seems to us most likely to be effective is the one requiring the preservation of readable internet history coupled with submission to inspection on request… if the defendant were to deny the officers sight of his computer, either in his home or by surrendering it to them, he would be in breach.
Where the risk is not simply of downloading pornography but consists of or includes the use of chatlines or similar networks to groom young people for sexual purposes, it may well be appropriate to include a prohibition on communicating via the internet with any young person known or believed to be under the age of 16 … it may be necessary to prohibit altogether the use of social networking sites or other forms of chatline or chatroom.”
Extent of the SOPO: Personal Contact with Children
The Court considered that care must be taken in considering whether prohibitions on contact with children are “really necessary”.
The Court noted that any provision must be tailored to the necessity of preventing sexual offending causing serious harm to others. The majority of such offences occur only when a child is under the age of 16 so, generally, a SOPO should only relate to contact with children under that age. Only if there was a genuine risk of offences under ss 16-19 of SOA 2003where a defendant stands in a position of trust or family offences under ss 25 – 26 of SOA 2003, would prohibitions on contact with children under the age of 18 be justified.
In cases where it is “really necessary” to impose a prohibition on contact with children (of whichever age, it is essential to include a saving for incidental contact such as is inherent in everyday life.
Further, if there was no risk that offences within a family may be committed then
it is both unnecessary and an infringement of the children’s entitlement to family life to impose restrictions which extend to them. Even if there is a history of abuse within the family, any order ought ordinarily to be subject to any order made in family proceedings for the very good reason that part of the family court process may, if it is justified, involve carefully supervised rehabilitation of parent and child”
SOPOs which prohibit the defendant from activities which are likely to bring him into contact with children must be justified as required beyond the restrictions placed upon the defendant by the Independent Safeguarding Authority under the Safeguarding Vulnerable Groups Act 2006.
Procedure:
Procedurally, it is essential that there is a written draft of the SOPO that can be properly considered in advance of the sentencing hearing. The normal requirement should be that it is served on the court and on the defendant before such a hearing and the Court suggested not less than two clear days before but in any event not at the hearing.
Applying the principles
The Court went on to consider the application of these principles in respect of the four appellants.
In respect of Wayne Clarke, the Court substituted a new indefinite SOPO which removed the blanket ban in internet use, the notification requirements, which prohibited social contact with boys when his offences had been entirely against girls and removed the prohibition of touching underage children as such an act would, in any event, be an offence.
In respect of Bryan Hall, the restriction on living with ‘any person under the age of 18′ was moderated to ‘any female under the age of 18 unless with the express approval of Social Services for the area’; the restriction on any unsupervised contact with a person under the age of 18 was moderated to “any female under the age of 18″ such as is “inadvertent and not reasonably avoidable in the course of lawful daily life or with the consent of the child’s parent or guardian (who has knowledge of his convictions) and with the express approval of the Social Services for the area’. The restriction of being in possession of a computer/i-phone or mobile without notifying the monitoring police was removed.
In respect of Steven Smith, the SOPO was quashed as he was given an indeterminate sentence for public protection. Consequently, those considering his case would remain responsible for the terms and conditions under which he lives, there is nothing useful to which a SOPO could add.
In respect of the 4th Appellant [UPDATE, January 2014 – his conviction was quashed in March 2013] , although the criminal activity for which he was convicted was “as about as low a level as it is possible to encounter in an offence for child pornography”,a SOPO was found to be necessary due to the appellant’s admitted strong sexual attraction to boys in the age range of 10 -15. The court admired the effort of the judge at first instance in attempting to render the internet provisions workable. However, as that appellant’s life “revolved around the use of computers and the internet” the terms of the SOPO were too widely drawn and “an order requiring a readable history and submission to inspection will better protect against the risk”.
Comment
It is clear those drafting SOPOs in future will need to look very closely at the nature and circumstances of the offences with which the defendant is charged and convicted – for example, the gender of the victims or potential victims of the offender and the risk of progression from viewing offences to contact offences. SOPOs will need to be tightly drafted after considerable thought.
Questions arise, however, regarding the Court’s rejection of the Hemsley formula. It is not, for instance, clear why “checking the weather forecast … planning a journey by accessing a map … reading the news … sending the electricity board his meter reading … conducting his banking across the web unless paying charges for his account, and indeed from sending or receiving Email via the web” cannot amount to ‘lawful recreation‘ without strained construction of the phrase.
It is difficult to see how, when recordable internet histories can be turned on and off for short periods of time using ‘private browsing’ facilities, the terms of the Court’s proposed term that “an order requiring a readable history” can be effectively policed. The proposed terms do not seem to prevent an offender from using a device belonging to another person (or in an internet cafe), provided it has the capacity to retain and display an internet history. Locating such a device would be a further barrier for any police investigation. Additionally, although the SOPO made by the Court prevents the offender “deleting such history”, it is not clear that the offender would be in breach of the SOPO if another person deleted the history.
Although this was a comprehensive review by the Court, it may be that further consideration of the terms of SOPOs, particularly in regard to internet usage, becomes necessary.
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Remember the three girls from Bethnal Green Academy, who in February slipped through Gatwick security to join so-called Islamic State of Iraq and the Levant (ISIL)? If, watching the footage, you exclaimed, “how can we stop this?”, then read on. Eight months and a massacre in Tunisia later, the Courts have intervened in more than 35 cases to prevent the flight of children to Syria or to seek their return.
In the very first cases, in which Martin Downs of these Chambers appeared, the High Court’s inherent jurisdiction was invoked to make the children wards of court. The value of this mechanism, previously used in child abduction cases and to thwart forced marriages, is that the ward requires permission of the Court to leave the jurisdiction, and passports can be seized. (See, for example, Re Y (A Minor: Wardship) [2015] EWHC 2098 (Fam)). Continue reading →
The underlying question was whether the Duchy of Cornwall had to answer Michael Bruton’s requests for information about the Duchy’s oyster farm, and in particular whether the farm had undergone environmental assessment before it commenced operation. Bruton’s concerns were that the Duchy’s oysters were non-native Pacific oysters, and he wanted to know whether the Duchy had considered whether the establishment of such a fishery affected existing oysters or had other effects upon the environment. In many regards, the case is round 2 of a battle started by Bruton in 2009 challenging the original grant of a licence by the Duchy to the oyster fisherman: see the 2009 decision by Burton J granting permission for this challenge. In the present case, the Information Commissioner said that the Duchy was not obliged to provide the information. The FTT disagreed.
Two recent Court of Appeal cases, heard together, have considered the legality of the immigration detention of those who are, or possibly are, minors. Such cases involve local authority age assessments, which are to be carried out according to the guidance set out in Merton [2003] EWHC 1689 (Admin). Continue reading →
In Secretary of State for the Home Department v Sergei Skripal [2018] EWCOP 6, Mr Justice Williams made a best interests decision that blood samples could be taken by the Organisation for the Prohibition of Chemical Weapons from Sergei and Yulia Skirpal in order that the Organisation for the Prohibition of Chemical Weapons (OCPW) could undertake their own analysis to find evidence of possible nerve agents. Both Sergei and Yulia were and remain unconscious and in a critical condition, and were unable to consent to such blood samples being taken.
My response to the proposals – as I saw things then – is on my blog here. Thoughts of divorce reform throw up two important human rights issues: one a direct Article 6 question; and the other – which it is surely time for law reformers and the government to confront? – is a discrimination point (Art 14).
But first a little history. The then Labour government, on Leo Abse MP’s private member’s bill, passed with (more or less) approval of the Church of England, the Divorce Reform Act 1969 (in force from 1 January 1971). It was consolidated into Matrimonial Causes Act 1973 (MCA 1973) which represents the modern law and the modern statutory underpinning for financial distribution on divorce or nullity. Mirror provisions apply for same gender couples: Civil Partnership Act 2004. Wholly different finance rules apply for unmarried cohabitants.
Matrimonial causes
The Matrimonial Causes Act 1973 (MCA) section 1 is very simple. There is one ground for divorce: irretrievable breakdown of marriage (s 1(1)). To prove that ground a petitioner (P) must prove one or more of five facts: adultery; behaviour making it unreasonable for P to live with the other spouse/partner (R); desertion for two years; living apart for two (with consent); or five years.
Reformers – including from their inception, the group of family law solicitors, now Resolution – have objected to the blame inherent in the first two facts, and the tendency which this may produce to leave a nastier taste, than need be, in the mouth of divorcees.
Police in Brighton prepare to enforce social distancing. Image: The Guardian
At this point, it is almost trite to say that we are living through unprecedented events. The global spread of the Coronavirus pandemic poses serious challenges to society. So far, the global death-toll has exceeded 21,000 and life as we know it in the UK has changed dramatically. In response to this crisis the Government has announced drastic measures in order to curb the spread of the virus and to support those who may be affected. Indeed, it seems that Cicero’s famous injunction to let the welfare of the people be the highest law has gained a new relevance in the age of COVID-19.
As readers of this blog will probably know, a significant plank of the Government’s legislative response is the Coronavirus Act 2020, which received royal assent on 25 March having been fast-tracked through Parliament. This substantial piece of legislation –which consists of 102 Sections, 29 Schedules and runs to just under 360 pages– is intended to deal with the various challenges that may be posed by the Coronavirus epidemic. As a result, its provisions are broad ranging, touching on areas as diverse as powers to disperse gatherings, pensions, sick pay, inquests and investigatory powers to name but a few.
Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640 – read judgment
Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).
Background facts and law
The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP [2009] UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not “institutionally appropriate” to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.
In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.
The Court concluded – with an interesting dissent from Charles J – that this was a matter for parliament. A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.
Conor Monighan brings us the latest updates in human rights law
Credit: the Guardian
In the News:
The Joint Committee on Human Rights (JCHR) has concluded that indefinite detention in immigrations centres must cease. The Committee published a critical report into the issue, which found indefinite detention has a highly detrimental impact upon detainees’ mental health.
The Committee argued that individuals should be held for no more than 28 days. It said this would provide an incentive to the Home Office to speed up case management, thereby reducing costs. Harriet Harman MP, the JCHR’s Chairwoman, noted in an article that the Home Office has paid £20 million over five years to compensate for wrongful detentions. Continue reading →
If you lose your mobile phone with highly confidential and private information on it, all may not be lost. The unscrupulous finder may be prevented from blurting its contents all over the web, even if the identity of that person is unknown to you or the court. It requires considerable input of computer expertise, but it is possible, as this case (cleverly taken in the Technology and Construction Court) illustrates.
The applicant’s mobile phone was reported to the police as stolen after she lost it at university in 2008. It contained digital images of an explicit sexual nature which were taken for the personal use of her boyfriend at the time. The applicant was alone in the photos and her face was clearly visible.
Invoking the right to privacy under Article 8, and the Protection from Harassment Act 1997, she applied for an interim injunction to prevent transmission, storage and indexing of any part or parts of certain photographic images taken from the phone, and an anonymity order under CPR r.39.2(4), which meant that the application, which was heard in private on the basis that publicity would defeat the object of the hearing, would preserve the anonymity of the applicant. Both applications were granted. Continue reading →
Söderman v. Sweden – (application no. 5786/08) – Read judgment
The European Court of Human Rights has decided that it is a violation of the right to privacy if a country does not have a law prohibiting surreptitious photography of people. The ruling has serious implications for paparazzi, and would have been useful to Princess Diana. A ready-made bill exists in the form of a draft published by the Law Commission for England and Wales in 1981.
On 12 November the Grand Chamber of the European Court of Human Rights ruled that Sweden’s lack of a legal ban on invading personal privacy by surreptitious photographs violated the right to privacy. The case involved a camera hidden in the bathroom by the stepfather of a fourteen-year old girl. (Söderman v. Sweden,application no. 5786/08).
In a bombshell ruling on Thursday last week, the Court of Appeal (Sir Terence Etherton MR, Irwin, Singh LJJ) held that the UK government’s failure to suspend licences for the sale of military equipment to Saudi Arabia was irrational, and thus unlawful. This was based on a finding that the government had violated Article 2.2 of the EU Common Council Position 2008/944/CGSP, as adopted in the Secretary of State’s 2014 Guidance. Under this instrument, Member States must deny a licence for the sale of arms to other states if there is “a clear risk” that the military equipment exported might be used “in the commission of serious violations of international humanitarian law”. In this case, there was a substantial risk of their use in the conflict in Yemen. The issue will now be remitted to the Secretary of State for reconsideration.
Government misuse of data continues to be a hot topic, as hearings have begun for Liberty’s landmark judicial review under the Investigatory Powers Act 2016. Meanwhile in Parliament, the Joint Committee on Human Rights has launched a new inquiry into ‘Privacy and the Digital Revolution’. The committee received evidence including written submissions from Privacy International, Liberty, the Information Commissioner’s Office. In its findings so far, it has emphasised a widespread lack of knowledge and understanding about how personal data is being used, threats posed by large-scale data collection to freedom of expression and association, and the role of ‘baked-in’ discrimination in data collection algorithms. These findings will supplement the government’s Digital Harms white paper, announced in April.
The Equality and
Human Rights Commission has published a report into legal aid and access to
justice for discrimination cases. Its recommendations include reforming the
telephone service to make reasonable adjustments for disabled users, adjusting
the threshold and financial evidence requirements for financial eligibility, and
addressing the asymmetry in terms of claims for legal representation between
discrimination and other cases. The full report is available here.
The Court of Appeal yesterday overturned the decision on Nathalie Lieven J in the Court of Protection that doctors could perform an abortion on an intellectually disabled woman who was 22 weeks pregnant without her consent. The decision had been made despite opposition by the woman’s mother and social worker, and had led to some international controversy, including a transatlantic intervention by US Senator Marco Rubio. Lieven J stated in her judgement that it would be a “greater trauma” for the woman to have a baby removed into care post-pregnancy than to have an abortion, stating “I have to operate in [her] best interests, not on society’s views of termination.” She also suggested that the woman, who was considered to have a mental age of between 6 and 9, wanted a baby “in the same way that she would like a nice doll”. The judgement of the Court of Appeal is not yet published.
In the courts
Liberty, R (On the Application Of) v Director of Legal Aid Casework: in 2017, Poole BC issued a public spaces protection order to prohibit rough sleeping in the town centre. This was issued despite advice from the Home Office that PSPOs could not be used for such a purpose. Ms Sarah Walker, a homelessness worker, sought to challenge the decision under s.66 of the Anti-Social Behaviour, Crime and Policing Act 2014, and was refused legal aid for making that challenge. Murray J upheld the Director’s decision to refuse legal aid. Despite submissions about the precariousness of her (and many others’) circumstances, he held that Ms Ward was not seeking a ‘personal’ or ‘material’ benefit as required by paragraph 19(3) of LASPO 2012, read in light of the Ministry of Justice’s 2009 consultation paper. In light of this conclusion, the question of whether a s.66 challenge constitutes ‘judicial review’ under paragraph 19(10) was not addressed.
Birmingham City Council v Afsar & Ors: this case related to the recent protests outside Anderton Park School in Birmingham, against the teaching of LGBTQ relationships to young children. Warby J discharged injunctions that had been granted without notice at the end of May, on the basis of a failure to comply with the duty of full and frank disclosure. However, he granted fresh interim injunctions, as he considered that the Council had demonstrated that it would probably succeed at trial in showing a risk justifying an injunction, and that the fresh injunctions would not amount to ‘improper restraint of lawful protest’. A more detailed weighing up of Articles 9, 10, 11 ECHR and Article 2 Protocol 1 awaits in the substantive hearing.
Chief Constable of Norfolk v Coffey: a front-line police officer with serious hearing loss applied to be transferred from the Wiltshire Constabulary to the Norfolk Constabulary, but was refused because her hearing fell “just outside the standards for recruitment strictly speaking.” The police officer was awarded compensation in the Employment Tribunal, on the basis of discrimination based on a perceived disability, under s.13 and Sch 1 of the Equality Act 2010. the Chief Constable appealed. In dismissing that appeal, the court emphasised the Chief Constable’s failure to take into account the Home Office guidance, and dismissed any suggestion that front-line duties were different in Norfolk and in Wiltshire as ‘half-baked’.
MacKenzie v The University of Cambridge: a lecturer in the Faculty of Law at the University of Cambridge was dismissed in 2013. Upon a challenge, the Employment Tribunal made an order for re-engagement following unfair dismissal under Part X of the Employment Rights Act 1996. The claimant sought to enforce this decision by issuing judicial review proceedings in the High Court, relying on s.3 and s.6 HRA 1998, Articles 6 and 13 ECHR, and Article 1 of the first Protocol. The court held, however, that ss.115-117 of the Employment Rights Act indicated that an ‘order for re-engagement’ did not create an ‘absolute and indefeasible obligation’ on the employer to re-engage the employee, or an equivalent right in the employee to be re-engaged. Therefore, in the absence of special circumstances, the order was not enforceable in the High Court, and the application for judicial review was dismissed.
On the UKHRB
Amelia Walker discusses the investigation into abuse at Brook House.
On Episode 85 of Law Pod UK, Emma-Louise Fenelon talks to Jo Moore and Laura Bruce about equality, diversity, and access to the Bar.
Thomas Beasley reviews the Supreme Court’s decision on ‘intentional homelessness’ in Samuels v Birmingham City Council.
On Law Pod UK Rosalind English discusses with Alaisdair Henderson the Welsh government’s decision to scrap the M4 Newport relief road.
Recent Black Lives Matter protests in London. Image: The Guardian
“In the end, we will remember not the words of our enemies, but the silence of our friends” said Martin Luther King in the context of White America’s silence with respect to the struggle for civil rights. The Prime Minister considers it relevant that the alleged murder of George Floyd occurred thousands of miles away – “in another jurisdiction” – yet the former colonies that now compose the United States of America is a jurisdiction which owes its common law legal system and heritage to the United Kingdom. St. George Tucker, in the appendix to his 1803 edition of Blackstone’s Commentaries, wrote that
the common law of England, and every statute of that Kingdom, made for the security of the life, liberty, or property of the subject … were brought over to America, by the first settlers of the colonies, respectively; and remained in full force therein [1].
The Black Lives Matter movement illuminates an incontrovertible chasm in the application of the rule of law in liberal democracy. The basic premise of the rule of law, which in Joseph Raz’s conception is that it should be capable of guiding behaviour, includes the necessary restriction on crime-preventing agencies from perverting the law. A society in which those tasked with upholding and applying the law – under the powers of stop-and-search and arrest – are instead themselves regular perpetrators of racist discrimination and violence, is one in which the rule of law can become a randomised hope that is more or less likely to be realised depending on the race of the citizen in question.
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ABC v Thomson Medical Pte Ltd and others, Singapore Civil Court of Appeal [2017] SGCA 20 – read judgment
Regina v Smith & Others [2011] EWCA Crim 1772 
In 
Söderman v. Sweden – (application no. 5786/08) – 
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