20 August 2012 by Rosalind English
Updated – Tony Nicklinson, one of the two claimants in this case, died on 22 August 2012.
This is Richard Dawkin’s battle cry in response to the recent High Court rejection of the challenge by locked-in sufferers to the murder and manslaughter laws in this country that have condemned them to an unknowable future of suffering.
As explained in my previous posts, Nicklinson, who suffered a catastrophic stroke in 2005, argued for an extension to the common law defence of ‘necessity’ for murder because the alternative – forcing him to stay alive – is worse. His lawyers also submitted that the government is in breach of his Article 8 right to ‘privacy, dignity and autonomy’, a right he cannot exercise independently because of severe disability.
The court rejected the “bold” submission, stating that there was no precedent anywhere in the world and such socially controversial changes were only for Parliament.
But the courts can’t keep ducking away from the problem, because Parliament is never going to address this issue. Why? Because, as Dawkins points out, once again, religion turns out to be the major culprit. Every attempt in the House of Lords “to do something about the right to seek professional (or even amateur) assistance in dying when you are too incapacitated to kill yourself” has crashed and burned, despite huge public support for reform in this area.
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20 August 2012 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
With the Olympics over now, there’s been a bit more activity in the legal blogosphere this week. Probably the biggest news is the guidance from the Senior Presiding Judge that may stifle judicial blogging altogether – the guidance requires that a blogging judge be unidentifiable as a judge . In other news, the Free Movement blog features a series of three posts this week discussing the July 2012 changes to the Immigration Rules; locked-in syndrome sufferer Tony Nicklinson loses his High Court case and yet another twist in the tale of Julian Assange emerges.
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17 August 2012 by David Hart KC
Amidst the root and branch opposition to socio-economic rights from some quarters, the idea that the Bill of Rights might contain an environmental right seems to have got lost in the smoke of this rather unedifying battle. The July 2012 Consultation on a Bill of Rights summarises the rival contentions well – see below.
I am ducking well away from the underlying question – should there be a Bill of Rights at all? – but support the proposition that, if there is to be such a Bill, it should contain some provision about the environment. Answers on a postcard to the Commission by 30 September, please, whether you agree or disagree with me, but in the interim, here is my penn’orth.
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16 August 2012 by Rosalind English
The Queen(on the application of Tony Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin) – read judgment
Lord Justice Toulson, sitting with Mrs Justice Royce and Mrs Justice Macur, has handed down judgment in the case of Tony Nicklinson and that of another “locked-in” syndrome sufferer, “Martin”. On all the issues, they have deferred to parliament to take the necessary steps to address the problems created by the current law of murder and assisted suicide.
Philip Havers QC of 1 Crown Office represented Martin in this case.
Tony Nicklinson sought a declaration of immunity from prosecution for a doctor who would give him a fatal dose of painkillers to end his life in Britain. He also sought a declaration that the current law is incompatible with his right to respect for private life under article 8, contrary to s1 and 6 of the Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide.
Martin’s claim was slightly different as his wife does not want to do anything which will hasten his death. He therefore asked for permission for volunteers to be able to help him get to the Dignitas clinic in Switzerland (under recent guidelines from the Director of Public Prosecutions only family members or close friends who are motivated by compassion are unlikely to be prosecuted for assisting a suicide). In the alternative he sought a declaration that section 2 of the Suicide Act is incompatible with the right to autonomy and private life under Article 8 of the European Convention.
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15 August 2012 by Adam Wagner
The legal blogosphere has been aflame this week with the news, first published on a magistrate’s blog, that the Senior Presiding Judge has sent new guidance to judges banning them from blogging in their judicial capacity. The SPJ has also threatened disciplinary action unless they remove existing content with breaches the new rules.
The key section of the purported guidance is this:
Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.
The guidance applies to those who blog anonymously because “it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered“.
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15 August 2012 by David Hart KC
The Geneva-based Aarhus Compliance Committee is considering a wide-ranging pair of challenges to the planning system claiming that it does not comply with the Aarhus Convention on Environmental Matters. The Committee (ACC) heard oral submissions on 27 June 2012, and on 12 August received what should be the last of the written submissions of the parties. A decision may emerge before the end of the year, but there is so much interesting material in the papers before the Committee (for which see this and this link) which is worth having a look at.
The challenges raise a whole host of issues – the key ones are:
(i) not all planning committees allow objectors to address them orally before making a planning decision – when they do, they get a bare 3 minutes to say their piece;
(ii) an objector cannot appeal the grant of planning permission; all he can do is seek judicial review if the planning authority err in law, with the potential costs consequences which that involves; compare the developer who has a full appeal on fact and law;
(iii) an objector cannot enforce planning conditions attached to a grant; all he can do is challenge the local authority if it refuses to enforce, again on a point of law;
(iv) the UK does not comply with Article 6 of the Convention in that not all projects likely to have an effect on the environment are properly challengeable;
(v) the UK does not comply with Article 7 of the Convention in respect of public participation in all plans which may relate to the environment.
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14 August 2012 by Lucy Series
Eleven Winterbourne View staff have pleaded guilty to 38 charges of ill-treatment and neglect of a mental health patient under s127 Mental Health Act 1983 (MHA). In this post I want to consider why we need ‘special’ offences like s127 MHA and also s44 Mental Capacity Act 2005 (MCA), rather than prosecuting crimes in care settings using more ‘mainstream’ offences.
The UN Convention on the Rights of Persons with Disabilities (CRPD), with articles emphasising access to justice (Article 13) and equal recognition before the law (Article 12) encourages us to think about how we can ensure disabled people have effective access to the law that protects us all before we develop parallel ‘special’ systems of rights protection (see, for example, Inclusion Europe, European Disability Forum). So my question is: why are we using ‘special’ offences of ill-treatment and neglect to prosecute crimes that occur in care, rather than the ordinary ‘offences against the person’ those outside of care rely upon?
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13 August 2012 by Adam Wagner
Othman, R (on the application of) v Special Immigration Appeals Commission (SIAC) & Ors [2012] EWHC 2349 (Admin) – read judgment
Angus McCullough QC represented Abu Qatada as his Special Advocate in the SIAC proceedings.
Along with many others, today I find myself emerging from an Olympic haze. And alongside that morning-after blur comes a nagging feeling that it is time to get back to blogging. Why not start with a man who has watched the last three Olympic Games during what the High Court describes as an “enormously lengthy” period of detention without charge, and whose last bail application was refused as it would be too difficult to keep track of him during the 2012 Olympics?
The last two or so weeks have been a wonderful time to be in London. Aside from the slightly naff closing ceremony, everything about the sporting carnival has been positive. It has also been a great time to be working in Temple, which has been converted into ‘Belgium House‘ for a fortnight.
Before returning to unlawful detention and Abu Qatada, a personal reflection. The first time I ever visited the Inner Temple was for a scholarship interview which took place on 9 July 2005. I will always remember the date because I had come to London for the interview on 6th July, the day on which the Games were awarded to London. The following day, I was on a bus on the way into town reading a newspaper headline about the Olympics, when I read on the BBC website that there had been a bomb on a tube. I jumped off the bus and flagged a taxi going the opposite direction, and the taxi driver told me he had just seen a bus blow up in Tavistock Square.
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13 August 2012 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
Another sparse week for human rights news – eyes, I suspect, remain on the Olympics as Team GB tried to accrue as many medals as possible in this last week, and of course the Parliamentary and legal summer holidays will make these coming months somewhat quiet. Some exciting news, however: Liberty is welcoming nominations for its Human Rights Awards 2012. We also have discussion of neglect and ill-treatment of the disabled, and illuminating commentary on the “Porn Trial”, in which a decision was reached this week.
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8 August 2012 by Rosalind English
In his recent book Harvard philosopher Michael Rosen poses the question: what is dignity, exactly, and do we know it when we see it? We are all familiar with the mantra that all humans are endowed with equal dignity, but do we really understand what it means? Since it is a formulation that is increasingly advanced in justifying universal human rights, we should try to get to grips with it, rather than reversing into circularities such as defining it as an intrinsic quality from birth. What makes it intrinsic? And at what point is it acquired? And why do we owe the dead a duty of dignity when they have no rationality and make no choices, autonomous or otherwise?
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5 August 2012 by Wessen Jazrawi
Another gratuitous Olympics pic
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Wessen Jazrawi
In the news
It has been a quiet week in the blogosphere which suggests that everyone else has been as glued to the Olympics as I have. This week has seen the arrest of a 17 year old following abusive tweets to Tom Daley and a case looking at the interesting question of whether a Jewish girl could be allowed to have herself baptised, as well as cases concerning Article 8 applications. This week also marks the start of Parliamentary recess and the end of the Trinity legal term. The next couple of months will be quiet as the courts and parliament take their summer breaks.
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4 August 2012 by Rosalind English
A fascinating article by SOAS EU law specialist Dr Gunner Beck lays bare some of the important problems created by British hostility to Germany, which, by contrast to the profound social and economic changes that have taken place in both countries in the seven decades since WWII, appears “timeless and unchanging.”
In a wide ranging analysis of the abiding obsession with Nazi Germany in the British media and elsewhere, as well as the “strange sado-masochism” of Germany itself, Gunner Beck demonstrates how effectively this prejudice creates and fosters confusion about the current crisis in the Eurozone and the reaction of some of its members to German demands for closer scrutiny. He asks us to question why German history
is still largely reduced to the twelve years from 1933 to 1945, and why it still seems impossible in Britain to criticise any aspect of German economic or foreign policy, especially on EU matters, without some kind of Nazi connotation or similar historical insinuation lurking somewhere in the background… Why has nearly a lifetime of peaceful and liberal-democratic development in Germany done so little to put the Third Reich into some kind of historical perspective?
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4 August 2012 by David Hart KC
A Mother v. A Father HHJ Platt, Romford County Court, 11 May 2012, read judgment
I recently dared to enter religious territory in a post about religious no-go zones declared by the courts – they should not pronounce on the intricacies of Sikh succession because it raised doctrinal issues which the courts should not decide. Compare and contrast this family law case.
Judges have to get involved in disputes on divorce, of which the current case is an exquisitely difficult example. Its facts are very simple. C was 10. Her parents and grandparents are Jewish. Her father is a Christian convert, and C wanted to be baptised. Her mother did not want this. She said father had brainwashed C, and it was premature. Mother went to court to stop any baptism proceeding until C was 16. The Court could not simply wash its hands of the case; that would encourage self-help taken by one or other parent, to the lasting resentment of the other.
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3 August 2012 by David Hart KC
A, R (o.t.a A) v. Chief Constable of B Constabulary [2012] EWCA 2141 (Admin), Kenneth Parker J, 26 July 2012, read judgment
The public/private divide still gets lawyers excited, even in an Olympic summer, and for good reason – my image is simply to cool the fevered brow of those fresh from the stadium or the beach. Now for the problem met head on in this case. Generally speaking, parties to a contract may treat the others how they please, as long as that treatment does not offend the terms of the contract or specific consumer protection rules. But, equally generally, a public body is obliged to treat others in accordance with public law rules of fairness, and can challenge unfairness by judicial review. And this case is a good example of the intersection between these principles.
A had run a breakdown recovery service for the police for some years. The police then interposed a main contractor, FMG, who awarded the contract to A for the continuation of the job, now as a subcontractor. But the sub-contract, understandably enough, provided that its award was subject to vetting by the police. And the police then refused to give A clearance. Why? The police would not say, even when A threatened proceedings. And they said that they did not have to. Their line in court was that it was all governed by the contract, and the courts had no business in poking its nose into their reasoning – in the jargon, it was non-justiciable. They relented to some extent in the course of the proceedings, by giving some information, but still said that they were not obliged to do so.
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30 July 2012 by Sam Murrant
Gratuitous Olympics image
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
Whilst the eyes of the world are on London’s Olympic Games, the eyes of this blog are on a series of important rulings which our judges produced last week just before they took the short stroll from the Royal Courts of Justice to Horse Guards Parade watch the beach volleyball. There were three particularly important decisions: firstly, Paul Chambers won his appeal against criminal conviction following a Twitter Joke. Secondly, the recent Alvi case clarified the meaning of the word “rule” in immigration law as a response; and finally the RT (Zimbabwe) case established that a person subject to deportation is not to be expected to lie about one’s beliefs (or lack thereof) to avoid persecution.
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Updated – Tony Nicklinson, one of the two claimants in this case, died on 22 August 2012.
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