On 6th February 2018, the Court of Appeal in AM (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 64 gave authoritative guidance on how Paposhvili v Belgium(Application no. 41738/10), which was decided last year by the Grand Chamber of the European Court of Human Rights, should be applied by English courts.
The issue in AM (Zimbabwe) concerned the applicable test for when removal of seriously ill people to their country of origin would raise an issue under Article 3 of the European Convention on Human Rights (prohibition on inhuman or degrading treatment). Sales LJ, giving the judgment of the Court of Appeal, decided that removal would only violate Article 3 if intense suffering or death would be imminent in the receiving state as a result of the non-availability of treatment which would have been available in the UK (AM para 38).
This ‘extended look’ analysis piece will call into question whether the Court of Appeal’s interpretation of Paposhvili into English law is correct.
On 8th February 2018, the Supreme Court held that the power to grant bail and impose bail conditions in respect of a person pending deportation ceases to be lawful if there is no legal basis for detaining that person. The power to impose bail conditions is inextricably linked to the power of detention. Once the Home Secretary ceases to have the power to detain a person under immigration law, she can’t then impose conditions on that person’s freedom through bail conditions.
Update – Isabel McArdle talks to Rosalind English about this case in the latest episode from Law Pod UK, available for free download from iTunes and Audioboom.
The Supreme Court has made a significant decision on the question of the scope of the common law duty of care owed by police when their activities lead to injuries being sustained by members of the public. It has long been the case that a claim cannot be brought in negligence against the police, where the danger is created by someone else, except in certain unusual circumstances such as where there has been an assumption of responsibility.
This case, however, was focussed on the question of injuries resulting from activities of the police, where the danger was created by their own conduct. The answer is that the police did owe a duty of care to avoid causing an injury to a member of the public in those circumstances.
There is no general immunity for police officers investigating or preventing crime. In this case, Mrs Robinson suffered injuries when two police officers fell on top of her, along with a suspected drug dealer resisting arrest. The officers had foreseen Williams would attempt to escape but had not noticed Mrs Robinson (who was represented by 1 Crown Office Row’s academic consultant Duncan Fairgrieve).
The recorder found that, although the officers were negligent, Hill v Chief Constable of West Yorkshire  gave them immunity from negligence claims. The Court of Appeal ruled the police officers owed no duty of care, and even if they did they had not broken it. It also found most claims against the police would fail the third stage of the Caparo test (i.e. it would not be fair, just and reasonable to impose a duty of care upon the police in these situations). The Court found Williams had caused the harm, not the police, so the issue was based on omission rather than a positive act. Finally, even if officers had owed the Appellant a duty of care, they had not breached it.
Mrs Robinson appealed successfully to the Supreme Court.
On 5th February 2018 the Divisional Court gave judgment in Love v USA  EWHC 172 (Admin), holding that the forum bar operated against the extradition of Lauri Love to the United States to face charges of making a series of cyber-attacks on the computer networks of private companies and US Government agencies.
This is the first reported case in which the ‘forum bar’ has been applied to block an extradition.
When Britain joined the European Economic Community in 1973 along with Ireland and Denmark, it marked the first enlargement of what we today call the European Union. Since 1973, the club of the nine members has become a union of 28 member states. Most importantly, the law of the EU has developed significantly in terms of validity, scope and substance. What we were studied in the law school with EU law was in essence the institutions, the processes and the tools that are available for the European integration. And in fact EU law has achieved a remarkable degree of integration in some areas such as the Eurozone and the internal market. However, with Brexit, a new chapter is in the writing, this time on the withdrawal from the EU.
A constitutional pathology
The withdrawal of the United Kingdom from the European Union after 44 years poses unprecedented legal challenges but provides useful lessons for the withdrawal process. Until today, this issue was a footnote in the textbooks, with the case of Greenland (which left in 1985) being the only precedent. Greenland joined the European Economic Community in 1973 with Denmark, then gained its autonomy (home rule) from Denmark in 1979 and in a referendum that took place in 1982, 53% percent of the population voted in favour of leaving the European Community. But it is beyond doubt that the exit of Greenland was much less complex, with the main topic for negotiation being the fishing industry.
In order to set a claim under way in the civil courts, it is necessary to serve the claim form on the party named as defendant. The service rules were good fodder for the likes of Dickens or Trollope as they set their tipstaffs in pursuit of the hapless seeking to escape the Marshalsea or similar; things became rather more mundane when society became too populous for personal service.