In July 2018 Noel Conway, who suffers from motor neurone disease, lost his claim for a declaration that the UK’s ban on assisted suicide was a disproportionate and unnecessary interference with his right to autonomy under Article 8. The Supreme Court refused to hear his appeal.
The bill introduces the first statutory definition of domestic abuse, which encompasses financial and emotional abuse as well as coercive and controlling behaviour. It would prohibit perpetrators from cross-examining their victims in court, impose polygraph tests on high-risk offenders as a condition of release, and create new powers to force perpetrators into rehabilitation programmes. Among other new protections for victims, the bill would make domestic abuse complainants automatically eligible for special measures in the criminal courts. It would also establish a new “office of the Domestic Abuse Commissioner” tasked with improving response and support for victims across public services.
Domestic violence is a major human rights issue which can deprive women of their rights to health and physical and mental integrity, freedom from torture, inhuman and degrading treatment, and the right to life. The bill has been welcomed by some as a significant step towards combatting the issue . However, writing in the Guardian, Julie Bindel criticises the new measure as “impossible to implement” and likely to be “misued by vindictive men” and “misunderstood by those tasked with protecting women”.
An Amsterdam court has ruled that Google should bring down an unofficial “blacklist” of doctors maintained by a discussion group on the internet. This is said to be the first right to be forgotten case involving medical negligence by a doctor.
The judgment – available only in Dutch and heavily redacted – was handed down in July last year. But publication was delayed due to disputes over whether publication would compromise the anonymity not only of the claimant but of the other fifteen doctors on the blacklist. The claimant’s lawyer, reported in The Guardian, predicted that Google will “have to bring down thousands of pages” as a result of this ruling:
There is a medical disciplinary panel but Google has been the judge until now.
The claimant was a surgeon who had been suspended by a disciplinary panel because of her postoperative care of a patient. This was changed to a conditional suspension after she appealed and she was allowed to continue practising.
Dr Lawrence McNamara is an academic at the University of York and a Senior Research Fellow at the Bingham Centre for the Rule of Law
A new practice direction reveals some valuable progress in the management of closed judgments, but leaves uncertainty and, very worryingly, indicates that some judgments will be destroyed.
Closed material procedures (CMPs) have become an established option for the government when it wants to rely on security-sensitive evidence in civil litigation.
In immigration matters in the Special Immigration Appeals Commission (SIAC) and in the full range of civil proceedings under the Justice and Security Act 2013, CMPs permit the state to rely on evidence that will not be disclosed to the other party who may be (for example) subject to deportation or a claimant in an action alleging state complicity in rendition.
Open and closed
judgments may be handed down. The latter will not be seen by non-state parties,
their lawyers or the public.
there have been heavy restrictions on access to and reporting of criminal
terrorism cases, most notably Incedal.
CMPs and closed
judgments are by nature a departure from fundamental rule of law standards of equality
of arms and open justice. The Supreme Court pointed this out in Al
Rawi and the Special
Advocates have been highly critical of them. Nonetheless, there is no sign that the CMPs
will disappear. Instead, the trend has slowly been towards managing them and
finding ways to mitigate some of the deficiencies.
A six-paragraph Practice Direction on Closed Judgments, issued on 14 January 2019, reveals some significant steps in that direction, but it lacks clarity in its scope and reveals a very troubling proposal for destruction of judgments.
The latest episode of Law Pod UK features Guy Mansfield QC, who acted for the government in the Mau Mau action against the UK Foreign and Commonwealth Office. In this group litigation over 40,000 Kenyans alleged abuse during the Kenyan Emergency of the 1950s and early 1960s. The various test cases led to a High Court judgments last year dismissing the claims for being out of time under the Limitation Act 1980. See Jo Moore’s post for the case citations referred to in the podcast, and also the more recent decision in Kimathi & Others [November 2018]
In his 1748 text ‘The Spirit of the Laws’, Montesquieu proposed his initial concept of what would ultimately become known amongst political scientists as the separation of powers. Mercifully, for both the writer of this blog and the time poor reader, this weekly round-up of events need only concern itself with one of those branches of government…
Despite best efforts however, the topic of European politics is never truly out of the picture. This week saw judgement given in a series of cases by the European Court of Human Rights concerning Article 6 rights in Hungary – Boza and Others, Kurmai and Others, Csontos and Others, Kvacskay and Others, Bartos, Kovács-Csincsák and Komlódi, and Borbély and Others v. Hungary. The EU member state has increasingly been the focus of continent-wide concerns about the rule of law in central Europe, which in particular relate to the policies of Prime Minister Viktor Orban and his Fidesz party. Similar concerns have spread to neighbouring countries including regional heavyweight Poland, where the ruing Law and Justice Party has repeatedly clashed with both Brussels and the country’s judiciary over suggestions that judicial appointments have become politically motivated. Continue reading →
R (Johnson, Woods, Barrett and Stewart) v SSWP CO/1552/2018 (11 January 2019) – read judgment
This case was brought by four social security claimants contesting the proper method of calculating the amount of universal credit payable to each claimant under the Universal Credit Regulations 2013. Singh LJ and Lewis J concluded that treating claimants as having “earned” twice as much as they do if they happen to be paid twice within one monthly assessment period is “odd in the extreme” [para 54] and “…. could be said to lead to nonsensical situations” [para 55].
The Legal Proceedings
The four claimants are employees who are paid monthly. As they receive their salaries on or around either the last working day or last banking day of the month, there are times when salaries payable in respect of two months are paid during one assessment period. This means that there were occasions on which the claimants were only allowed to retain a single amount of £192 by way of the work allowance from the combined two months’ salary. The work allowance is the amount of earnings claimants with children or with limited capability for work can keep in full before universal credit is reduced by a proportion (63%) of their earned income under Regulation 22 of the 2013 Regulations. This way of calculating the allowance resulted in fluctuating universal credit awards and “severe cash flow problems” [para 4] for the claimants. Continue reading →
At the age of 85, United States Supreme Court Justice Ruth Bader Ginsburg has developed an extraordinary legal legacy while becoming an unexpected pop culture icon. With the documentary ‘RBG’, and the movie ‘On the Basis of Sex’ starring Felicity Jones shortly to go on general release in cinemas, Emma-Louise Fenelon speaks to Mrs Justice Philippa Whipple about her exceptional life and career. Listen to Episode 61 of Law Pod UK.
RBG is Directed by Betsy West and Julie Cohen and co-produced by Storyville Films and CNN Films. Details are available here: https://www.rbgmovie.co.uk.
Law Pod UK is available for free on Audioboom, iTunes, PodBean, The Podcast App or wherever you get your podcasts.
Last Friday the UK Human Rights Blog and Law Pod UK Committee and contributors celebrated a fantastic year at 1 Crown Office Row with Vermouth tasting and prize-giving. We were delighted to be joined by special guests David Prest and Simon Jarvis from Whistledown Productions, as well as former 1COR member, Wendy Outhwaite QC.
Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: The Guardian
The Government is considering whether to abolish prison sentences lasting six months of less.
Rory Stewart, the Prisons Minister, has argued that short jail terms are only serving to increase crime by mixing minor offenders with hardened criminals. He cited research suggesting that community sentences may help reduce the risk of reoffending when compared to short term prison sentences.
In Scotland there is already a presumption against such sentences. Re-offending has fallen to its lowest level for nearly two decades and the Scottish government are looking to widen the scheme.
The change would impact upon around 30,000 offenders, helping alleviate pressure on the overburdened prison system. Exceptions would be made for offenders who were violent or had committed sexual crimes.
The suggestion has already proven controversial. The Ministry of Justice has emphasised it is only exploring options and no decision has been made.
ARB v IVF Hammersmith & Another  Civ 2803 (17 December 2018) – read judgment
Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful birth arising from a breach of contract.
The facts of the case are set out in my podcast on the first instance decision (Episode 12 of Law Pod UK). Briefly, an IVF clinic had implanted the claimant father’s gametes into his former partner without his consent. This occurred after the couple had sought fertility treatment at the clinic resulting in the birth of a son some years previously. Following standard practice, the clinic froze five embryos made with their gametes. Subsequently, the couple separated. Some time after this separation the mother, R, attended the clinic without ARB and informed the staff that they had decided to have another child. The form requiring consent from ARB for thawing and implanting the embyro was signed by R, and the clinic failed to notice the forgery. R went on to give birth to a healthy daughter, E, who is now the sibling of ARB’s son. There is a Family Court order confirming parental responsibility and shared residence in respect of both children. Continue reading →
But what happened in the courts? Oh what an adventure it has been, dear reader. Strap on your seat belts and join me as we take a whistle-stop tour through 10 of the biggest legal battles of the last year.
This case is a salutary reminder to all who conduct litigation about the necessary elements of procedural fairness which continue to underlie our system of civil justice; even in a modern context when a cards on the table approach characterises many disputes from a very early, often pre-action, stage.
In Sait v GMC the context was regulatory proceedings against Mr Sait, an experienced consultant orthopaedic surgeon. At the conclusion of a seven day hearing, the MPTS found certain facts proved against him in a case alleging inappropriate sexually motivated conduct towards a patient. The Tribunal ordered that he be suspended for 3 months.
He appealed against the finding that he did what he did with sexual motivation and therefore against the finding that his fitness to practise was impaired by virtue of misconduct. The grounds of appeal were that the Tribunal failed to observe essential standards of procedural fairness because it was never sufficiently put to the appellant, whether in the course of cross-examination, or in the Tribunal’s own questions, that his conduct was sexually motivated.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.