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Do advocates retain an absolute immunity for things and said and done in court, or must the invocation of the immunity be scrutinised on a case-by-case basis? A heavyweight panel of the Court of Appeal – including the Lady Chief Justice and the President of the King’s Bench Division – in Chief Constable of Sussex Police and the Crown Prosecution Service v XGY(Bar Council intervening) [2025] EWCA Civ 1230 (“XGY”) has come down decisively in favour of the former proposition, offering some much-needed clarity on this area of law.
Readers of this Blog may think that I’m going through a bit of a simian crisis. And that would be understandable; perhaps I am. But close on the news about baboon trapping (my previous post on these animals) comes a different story, one that reflects our very complicated and hypocritical approach to wild animals and what we perceive to be appropriate protections for them under the law.
Who doesn’t love a goldfinch, or a hedgehog? Or a cheetah, bounding through the African dust? We all do!
Who loves a baboon? Nobody! Apart from South Africa’s equivalent of our RSPCA, or the Wildlife Animal Protection Forum South Africa (WAPFSA), which is at the centre of the following story, recently highlighted by the Daily Maverick, South Africa’s only independent newspaper.
I would urge readers to read the DM article first. The author, investigative environental journalist Adam Cruise, urges us to attend to the wider story.
This isn’t just about baboons in the Stormberg region. It’s a mirror on our relationship with our wildlife heritage. South Africa is home to a unique biodiversity. If indigenous primates are abandoned, sanctuaries collapse and killing is proposed as a solution, how can we claim to be custodians of our wildlife?
In this post I will attempt to disentangle some legal themes from the story which powerfully illustrates the inconsistency in legal protections afforded to different wild animal species, and exposes the structural problems within that country’s animal welfare and environmental law regimes.
Before reading on, be aware that there are 39 chacma baboons abandoned on a farm near Burgersdorp in the Eastern Cape, stranded after their sanctuary was dissolved by government fiat. The farm owner, whose property the animals occupy, requested their removal because the permit had lapsed. The provincial authority reportedly suggested that the animals be killed within 72 hours, and offered the “cost-effective” option that the landowner “open the cages, chase the animals out and have a competent hunter dispatch the animals as humanely as possible”. I put up a picture of a cute baby baboon because people tend to recoil from the adult version.
Readers of this blog as well as listeners to Law Pod UK may remember the European Court of Human Rights’ controversial ruling in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. We have written about it on the UKHRB here, and it has come up in Law Pod UK epsiodes discussing the ECHR, both in our interview with Lord Sumption here and our discussion with Marina Wheeler KC and David Wolfson KC here.
In it, the authors criticise the Committee of Ministers’ conclusion that Switzerland has effectively complied with the Strasbourg’s judgment in the Verein KlimaSeniorinnen Schweiz case. It will be recalled that the ECtHR found that Switzerland had failed to meet its obligations under Article 8 of the European Convention on Human Rights (right to respect for private and family life) by not taking adequate and timely measures to mitigate climate change. The ruling emphasised the role of national authorities, especially courts, in ensuring compliance with Convention obligations, clearly placing the onus on Switzerland to enhance its climate policy and implementation.
This ruling was reached despite the fact that Switzerland had held not one but two national referenda on what it its citizens expected the government to do in discharging the country’s obligations under the Paris agreement. The second referendum, in June 2021, rejected certain measures that would align national targets with the Paris Agreement.
I recently came across this judgement by the South African Constitutional Court. As a “Saffa” myself, I rejoice in the case’s title, pairing the name of the penultimate prime minister of the old apartheid South Africa (Botha), and the name (Smuts) of a much earlier Prime Minister of the Union of South Africa from 1919 to 1948.
But this case concerned two ordinary people, an insurance broker and an environmental activist, locking horns over their respective rights to privacy and freedom of expression under the South African Bill of Rights. The Constitutional Court judgment – running into nearly 100 pages in the Butterworths Human Rights Cases – is an interesting example of “salami slicing”, where the court takes apart a protected right and determines which bits of it can be upheld in the circumstances, and which can be set aside. It is also a fascinating insight into how information on social media platforms involves constant “re-publication”, and what that means for privacy and free speech rights. And finally, the judicial reflections on publication of someone’s personal address in the days of WFH show how far we have changed as a society since the pandemic.
The facts can be set out briefly.
Background facts and law
The applicant, Mr Botha, is an insurance broker who resides and conducts business in Gqeberha. He is also the owner of the farm Varsfontein situated in Alicedale in the Eastern Cape Province, a hundred kilometers away from his home.
The first respondent, Mr Smuts, is a wildlife conservationist, farmer, researcher and activist. The second respondent (amicus) is the Landmark Leopard and Predator Project – South Africa, a conservation non-governmental organisation focusing on human wildlife conflict management and leopard and carnivore conservation. It was founded by Mr Smuts who is its executive director.
A member of a group of cyclists who participated in an organised adventure ride that traversed Mr Botha’s farm (legally) encountered a dead baboon and porcupine in cage traps. The animals appeared to him to have been exposed to suffering and distress. Outraged by what he saw, the cyclist photographed the dead animals in the cages with the intention of sharing the photographs with an organisation capable of taking action. He shared them with Mr Smuts on 1 October 2019.
He also sent Mr Smuts a detailed map depicting the location of Mr Botha’s farm on which he indicated the place on the farm where the photographs were taken.
Mr Smuts published a post on the second respondent’s Facebook page which included, amongst others,
(a) a photograph of a baboon trapped in a cage; (b) a photograph of a porcupine trapped in a cage; (c ) a Google search location of Mr Botha’s insurance brokerage address (which turned out also to be Mr Botha’s residential address) and telephone number.
This is an extract from an article published in the latest edition of The Critic, 17th October 2025. We post it here by kind permission of its authors and editors of The Critic.
In 2024, approximately 220 million animals were ritually slaughtered in England and Wales. Of these, roughly 30 million had their throats slit whilst fully conscious, and 190 million were stunned unconscious before being killed.
The Welfare at the Time of Killing (England) Regulations 2015 (“WATOK”) require that animals be effectively stunned before slaughter, in order to spare them “avoidable pain, distress or suffering” when they are killed. In its next breath, however, WATOK authorises the very practice it condemns (non-stun slaughter) where it is “in accordance with religious rites”.
Non-stun slaughter entails atrocious violence which all major animal welfare bodies, including the British Veterinary Association and RSPCA, agree should be prohibited. The failure of Parliament to make a decision about the normative value of animal welfare has left a gaping statutory hole that defers the fate of animals’ final moments to the whim of religious authority.
A private member’s bill to enshrine the rights of nature was introduced in the House of Lords on October 23, 2025. The bill is supported by former Green Party Leader Baroness Natalie Bennett, and drafting was led by the organization Nature’s Rights. The objective of the nature’s bill of rights is to change the legal status of nature to that of a recognized legal entity with inherent, enforceable rights. The bill would create a duty of care for the government to protect nature. The proposal includes a governance structure, monitoring, and the creation of a nature’s rights tribunal for enforcement and dispute resolution.
According to Nature’s Rights, the purpose of the bill is to establish a legal framework for a more regenerative and sustainable society while aligning with realities of climate change science. If the bill passes, the UK will join a number of other states which recognize some degree of rights for nature in their constitutions, laws or regulations, including Ecuador, Brazil, Bolivia, Mexico, New Zealand, Uganda, Canada and the US.
In the courts
The Supreme Court heard arguments last week in relation to the 2014 decision known as Cheshire West. The 2014 ruling established the ‘acid test’ for determining whether an individual has been deprived of their liberty. According to the test, if a person (1) is subject to continuous supervision and control and (2) is not free to leave, then they are deprived of their liberty. The ruling had implications for persons with disabilities where it had been concluded that where a person with a disability cannot consent to their care arrangements that involve confinement, they are being deprived of their liberty. Where a person cannot consent to their care, an independent individual is required to determine that the confinement is justified, lawful and in the person’s best interests. The ruling has resulted in a significant increase in deprivation of liberty safeguards (“DoLS”) applications: for 2023-24, 332K applications were made (an increase of 300K over 10 years), with a backlog of 124K.
The Attorney-General of Northern Ireland (“AGNI”) is asking the seven-judge panel to reconsider Cheshire West in order to change the current DoLS established in response to the Cheshire judgement. The AGNI is seeking for consent for care arrangements to be obtained through an expression of a person’s feelings and wishes where they lack capacity to consent.
The Department of Health and Social Care (“DHSC”), an intervener, argued Cheshire West was “wrongly decided” and created an unsustainable system. DHSC argued that the focus of safeguards should be on identifying a person’s wishes and feelings and avoid intruding upon individuals’ lives. Three charities, Mencap, Mind and the National Autistic Society, intervened in the case. They jointly expressed a serious concerns about the arguments put before the Supreme Court and argued that the current test applies to “highly restrictive settings” and is there to ensure individuals have advocates in the care process; changes would jeopardize the safety, freedom and rights of disabled persons.
The International Federation for Human Rights (Féderation Internationale pour les droits humains, FIDH) has published a report sharply critical of French, German, UK and US state and media responses to pro-Palestine movements between October 2023 and September 2025, in what it calls “a profound crisis”, “not only under authoritarian regimes, but also in liberal democracies that have long claimed to uphold human rights.” Co-signed by the Ligue des droits de l’Homme (France), the Center for Constitutional Rights (US) and the Committee on the Administration of Justice (Northern Ireland), the report compares “violations to the rights of freedom of opinion and expression” across the four jurisdictions, particularly through what it perceives as direct and indirect media censorship and “systematic bias in reporting”; “violations against activists, NGOs, and civil society”; “violations against academic freedom”; and restrictions to “freedoms of peaceful assembly and association” (with blanket bans on protests in France and Germany coming under particular criticism for failing to meet tests of necessity and proportionality). FIDH claims that diverse measures “directly violat[ing] international human rights obligations… have created a widespread chilling effect on freedom of expression and public debate” in the countries concerned, “further undermining democratic participation and the voices of minority groups.” Among the report’s recommendations directed at the UK are a review of public nuisance orders, and the creation of an independent body to oversee police practices during demonstrations, based on the model of the Police Ombudsman in Northern Ireland.
Michael O’Flaherty, the Council of Europe Commissioner for Human Rights, has published two separate letters on human rights concerns in the UK: one regarding protest policing, the other the “situation of trans people”. The first letter, addressed to the Home Secretary Shabana Mahmood, notes the “ever more prominent” policing of protests in the UK since the Commissioner’s visit in July. It urges a “comprehensive review of the current legislation on the policing of protests within the United Kingdom’s human rights obligations” (referring specifically to the Terrorism Act 2000, the Police, Crime, Sentencing and Courts Act 2022, and the Public Order Act 2023). Further concerns are expressed about the prohibitions of assemblies “in the vicinity of a place of worship” and of the wearing of masks in the Crime and Policing Bill, currently before the House of Lords. In the second letter, addressed to the Chairs of the Joint Committee on Human Rights and the Women and Equalities Committee, O’Flaherty draws attention to the guidance provided by Strasbourg case law on the rights of trans people: “this is particularly important as the Supreme Court [in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16] did not engage with these human rights issues.” Speaking of the fallout of the Supreme Court case, the Commissioner warns against “a tendency to see the human rights of different groups of people as a zero-sum game. This has contributed to narratives which build on prejudice against trans people and portray upholding their human rights as a de facto threat to the rights of others.”
In the courts
The Home Secretary has lost her appeal against the decision to grant one of the founders of Palestine Action permission for judicial review of the group’s proscription under the Terrorism Act. In R (Huda Ammori) v Secretary of State for Home Department [2025] EWCA Civ 1311, Lady Carr CJ held that the fact there was a route open for Palestine Action to seek “deproscription” through the Proscribed Organisations Appeal Commission did not rule out a challenge to the original proscription by way of judicial review. “We consider that the fact that judicial review would be a more expeditious means of challenging the Order, given the public importance of issues raised, and, in particular, the fact that persons were facing convictions for acting in ways that were made criminal as a consequence of the Order, justified using judicial review” ([59]). The Court of Appeal also granted Ms Ammori permission to apply for two further grounds of review: that the Home Secretary failed to have regard to relevant considerations, and that she did not follow her published policy. These are in addition to the two grounds already permitted by the High Court on 30 July: that the Home Secretary’s Order was unlawful as a disproportionate interference with Articles 10 and 11 of the European Convention (freedom of expression and assembly), and that the Home Secretary should have consulted Palestine Action before making the Order, and by failing to do so was in breach of natural justice and Article 6 of the Convention (right to fair trial). The judicial review hearing is due to commence at the High Court on 25 November.
It will come to the surprise of many that the common law offence of blasphemy in the UK was only abolished in 2008. It has no place in a secular society such as ours. However attempts have been made to use the Public Order Act 1986 to introduce blasphemy by the back door, by criminalising religious hatred offences.
This legislation excludes “antipathy, dislike, ridicule, insult or abuse of particular religiions’ from its religious hatred provisions.
The number of hate crimes committed in England and Wales has risen since the previous year, according to statistics released by the Home Office. In the year ending March 2025, 115,990 hate crimes were recorded by the police: this marks a 2% increase overall, a 6% increase in race hate crimes, and a 3% increase in religious hate crimes. A 19% increase in religious hate crimes targeting Muslims coincided with the time of the Southport murders and the subsequent race riots across the country.
Kemi Badenoch has confirmed at the Conservative Party Conference that her party would withdraw the UK from the European Convention on Human Rights and repeal the Human Rights Act if they form the next Government. This follows a legal review by the Shadow Attorney General, Lord Wolfson, into the impact of remaining in the ECHR. The Wolfson Report concluded that ‘it is hard to overstate the impact the ECHR has had on government decisions’, placing ‘substantial’ limitations on government policies to do with immigration, veterans’ rights, benefits, and reforms to sentencing and protest laws. Read Rosalind English’s summary of the Report here: The UK can, and should leave the Human Rights Convention (7 October 2025).
In International News:
A ceasefire has been agreed for the war in Gaza. The deal, brokered by the US, provides for a cessation in the conflict between Israel and Hamas which has been ongoing since 2023. The full text of the deal — entitled ‘Implementation steps for President Trump’s proposal for a comprehensive end of Gaza War’ — has not been publicised, though parts have been published by Israeli media. Trump’s 20-point plan, announced last week, provided for Gaza to be a ‘deradicalised terror-free zone’ which will be ‘redeveloped for the benefit of the people of Gaza’; all hostages will be released, and full aid will be sent to the Gaza Strip.
In the Courts:
An asylum seeker unsuccessfully challenged the housing and financial support given to him by Enfield Council. In R (on the application of BLV) v Secretary of State for the Home Department [2025] EWHC 2516 (Admin), the Claimant was a disabled man suffering from deafness, impaired eyesight, and major depressive and anxiety disorders. The Defendant was obliged, under the Immigration and Asylum Act 1999, to provide ‘adequate’ accommodation and other ‘essentially living needs’ to the Claimant; under the Equality Act 2010 and Human Rights Act 1998, it was also bound to adjust its general approach to providing support under the IAA 1999 to account for the Claimant’s specific disabilities. The Defendant contended that Enfield’s support was inadequate for two reasons:
His accommodation was inadequate, because it was too far away from his support network and did not have a suitable disabled lift;
His internet access was inadequate, because it was not sufficient for him to access mental health and other support services via video-call (his deafness made it impossible to rely on voice call alone).
The court applied the ‘twin-track’ test, namely: 1) whether the Secretary of State met an objective ‘minimum standard’ for ‘ensur[ing] full respect for human dignity and a dignified standard of living, maintain[ing] an adequate standard of health and meet[ing] the subsistence needs of the asylum seeker’; 2) even if the minimum standard has been met, whether the Secretary of State complied with public law standards including rationality. The court found that (stage 1) the Claimant’s accommodation did meet the minimum standard. Furthermore, (stage 2) the Defendant’s treatment of the Claimant did not violate its duties under the EA 2010, HRA 1998, or other public law principles.
An interesting aspect of this case was that internet video calling was deemed capable of being an ‘essential living need’ because of the Claimant’s disabilities. The court ruled that ‘the concept of ‘need’ is…affected by technological progress and consequent changes in societal expectations’, and that ‘internet-based communication… has become essential for interacting with other people and accessing public services.’
This decision by the Northern Ireland Court of Appeal (NICA) on 16 September 2025 is the latest stage of long-running litigation concerning odour from the Mullaghglass landfill, in Lisburn, Northern Ireland. It is an object lesson in the various pitfalls which may stand in the way of a successful judicial review of public authorities’ response to environmental problems.
First, the parties. Ms McAleenon lived just over a mile from the landfill site and had been affected by odours from about 2018 onwards, caused by hydrogen sulphide generated by the waste. She sued Lisburn Council (LCCC) who were under a duty to investigate potential statutory nuisances in their area. She also added as defendants the NI Environment Agency (NIEA), which ran the environmental permitting system for the landfill, and the Department of Agriculture, Environment and Rural Affairs (DAERA, the Northern Irish equivalent of DEFRA) who oversaw NIEA. She filed medical evidence from a Dr Sinha supporting a linkage between hydrogen sulphide and lung damage.
In May 2022, Ms McAleenon failed before Humphreys J against all defendants. She appealed to the Court of Appeal ([2023] NICA 15), who did not engage with the merits but determined that Ms McAleenon had alternative remedies which she should have pursued – her own statutory nuisance prosecution or a civil claim for private nuisance. Part of their reasoning was that it was unjust that the claim should be determined without cross-examination of the relevant expert witnesses.
This decision was reversed by the Supreme Court in 2024. The SC said that it is a matter for a claimant to decide which sorts of claims were better calculated to request environmental regulators to comply with their public law duties: [4] of the latest NICA decision.
The SC referred the case back to NICA, and hence this decision of 16 September 2025.
But this choice of remedy for Ms McAlennon came at a cost. She chose the public law route and she had therefore to abide by the public law rules about deference to the specialist regulators’ opinions when concerned with hazardous activities. Ultimately it was these principles which led to the NICA to dismiss her claim. But, for her status as victim under the Convention, it probably did not matter that Ms McAleenon had moved out of the immediate vicinity of the landfill, nor did it matter that the landfill had closed in November 2022.
Update (10 October 2025): Kemi Badenoch has confirmed that Conservative Party policy will be to withdraw the UK from the European Convention on Human Rights (ECHR) and to repeal the Human Rights Act if they win the next general election. This was made clear in both her statements ahead of and during the annual Conservative Party Conference in October 2025, following a detailed legal review led by the Shadow Attorney General, Lord Wolfson, which found that remaining in the ECHR would fundamentally obstruct key party policies on immigration, veterans’ rights, prioritising citizens for public services, and reforming sentencing and protest laws.The Conservative Party leader explicitly stated in her conference speech: “We must leave the ECHR and repeal the Human Rights Act. The next Conservative manifesto will contain our commitment to leave. Leaving the Convention is a necessary step.”
Lord Wolfson’s advice was commissioned by the Conservative Party and is known as the Wolfson Report. It is important to note at the outset that, despite its title on the Party website, Lord Wolfson emphasises that this is “neither a policy paper nor a report. It is a legal analysis”, in other words, advice to the leader of the Conservative party. For reasons of economy in the following paragraphs I will refer to this 185 page document as a “report”.
David Wolfson KC is Shadow Attorney General Lord Wolfson of Tredegar, a prominent commercial lawyer and former justice minister. We have heard his views on the role of international law and his differences with government AG Richard Hermer domestic on Law Pod UK earlier this year.
In this paper he sets out an exhaustive examination of the relationship between the European Convention on Human Rights (ECHR) and UK law, specifically focusing on areas where the ECHR constrains the government’s ability to enact domestic policies. This report could be pivotal in shaping the party’s commitment to leave the ECHR, as it concludes that such a move is necessary to fulfil a range of key policy priorities.
For balance, here is the late Conor Gearty’s column in the London Review of Books Unwelcome Remnant – the threat to the Human Rights Act , lamenting judicial avoidance of ECHR solutions to problems and relying on common law or UK legislative measures instead. Gearty cites many examples of this, most notably the Supreme Court’s ruling in the For Women Scotland v The Scottish Ministers which he says “completely ignores the impact of human rights law.”
Back to Wolfson.
Overview
The report scrutinises the effect of the ECHR in five core public policy areas: immigration control, prosecution of military veterans, prioritisation of British citizens in social policy, sentencing and protest laws, and economic growth impediments (particularly linked to climate-based challenges to infrastructure projects). Wolfson sets out a detailed legal analysis and a set of evaluative “tests” for national sovereignty, arguing that only by exiting the ECHR and repealing the Human Rights Act can the UK achieve these policy goals unimpeded.
In 2005, the Grand Chamber of the European Court of Human Rights handed down its landmark decision in Hirst v the United Kingdom, finding that the effect of section 3 of the Representation of the People Act 1983, bringing into effect a blanket ban on the ability of prisoners in the UK to vote in elections, constituted a breach of Article 3 of Protocol 1 of the Convention (the right to free elections).
To say the case was controversial is an understatement, with the judgment becoming something of a bête noire for Strasbourg sceptics. Murray suggests that the judgment was pivotal in the “monstering” of the European Court. It is often presented as a case which epitomises Strasbourg overreach, taking the number 1 spot in the Judicial Power Project’s buffet of unfavourable, “problematic” legal cases. David Cameron, of course, famously remarked that the idea of complying with the judgment and giving (some) prisoners the vote made him feel “physically sick”.
In R (Anaesthetists United Ltd and Others) v General Medical Council [2025] EWHC 2270 (Admin) (“Anaesthetists United”), Mrs Justice Lambert dismissed a judicial review claim brought by the claimants against the defendant regulator for Physician Associates (“PAs”) and Anaesthesia Associates (“AAs”) – collectively referred to hereafter as “Associates” – in the UK.
The claim is the most recent instalment in a brewing saga over the continued use and regulation of Associates in the UK’s healthcare system:
In April 2025, Lambert J dismissed the British Medical Association (“BMA”)’s judicial review challenge (R (British Medical Association v General Medical Council [2025] EWHC 960 (Admin)) to the GMC’s decisions to (i) apply the same basic professional standards to doctors and Associates, and (ii) refer to all three professions collectively as ‘medical professionals’.
Just prior to the handing down of Anaesthetists United, Professor Gillian Leng released her final report following the conclusion of her independent review into the Associate professions.
In this episode, Lucy McCann is joined by Zelda Perkins, CEO of Can’t Buy My Silence UK and former PA to Harvey Weinstein, who broke her NDA and has since campaigned against the use of NDAs to silence workers speaking out against abuse, and Emma Darlow Stearn, a barrister practising from Cloisters Chambers, who specialises in employment and discrimination law and, in her previous role as Senior Legal Adviser for whistleblowing charity Protect, collaborated with Zelda to make the law on NDAs more accessible.
Zelda shares her personal story about the signing and breaking of her NDA, which had prevented her speaking up about Harvey Weinstein’s behaviour, and about her campaign Can’t Buy My Silence UK which has in large part led to amendments to the Employment Rights Bill (under Clause 22A) that will ban employers from using NDAs in cases of harassment and discrimination. Zelda and Emma discuss the nature and possible impact of those amendments which, since the time of recording, have been approved by the House of Commons and are due to become law in Autumn 2025 as s.202A Employment Rights Act 1996.
Law Pod UK is published by 1 Crown Office Row. This episode was co-produced by 1 Crown Office Row and Emma Darlow Stearn. Supporting articles are published on the UK Human Rights Blog. Follow and interact with the podcast team on Twitter.
The UK Government enforced its first deportations under its controversial “one-in-one-out” asylum-seeker agreement with France this week, despite an interim injunction on Wednesday temporarily blocking the removal of one Eritrean national. Home Office sources reported the deportation of asylum seekers of Indian, Iranian and Eritrean nationality under the scheme; one deportee’s challenge at the High Court on human rights grounds failed upon Mr Justice Sheldon’s finding that, as a fellow signatory of the European Convention, France would afford the applicant the same human rights protections as the UK. Earlier in the week, a 25-year-old Eritrean man had succeeded in being granted an interim injunction temporarily staying his removal to France, after it was argued that the applicant required more time to make representations on his claim to be a victim of modern slavery. The ruling had prompted the newly appointed Home Secretary Shabana Mahmood to accuse asylum seekers of making “vexatious, last-minute claims” that “make a mockery of this country’s generosity”, and to issue new guidance to the Home Office slavery assessment team. The UK-France Dangerous Journeys Agreement was presented to Parliament last month, and is set to run until June 2026. It provides for the forced return of individuals entering the UK illegally from France, in exchange for the same number of asylum seekers who do meet UK immigration rules. The first French arrivals under the ”exchange” are now due to enter the UK over the next week.
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