Kenyan “Mau Mau” claim dismissed: Fair trial not possible because of half century delay

6 August 2018 by

article-0-0B84CC4D00000578-861_634x400Kimathi & Others v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB) read judgment 

Stewart J has dismissed the first test case in this group litigation, in which over 40,000 Kenyans bring claims for damages against the UK Foreign & Commonwealth Office, alleging abuse during the Kenyan Emergency of the 1950s and early 1960s.

The mammoth hearing lasted 223 days, and the judgment accordingly runs to nearly 500 paragraphs. The decision turns on whether the judge should allow the claim to be heard over 50 years after the primary deadline expired.

In personal injury claims, section 33 of the Limitation Act 1980 provides that in certain circumstances, a claim which would otherwise be out of time (“statute-barred”) can nevertheless be heard. The court has a discretion to disapply the usual three-year time limit where it is equitable. This involves balancing the prejudice to the defendant of facing a late claim against the prejudice the claimant will suffer if the claim is statute-barred.

In this test case, Stewart J determined that it would not be equitable to extend time in the claimant’s favour. The severe effects of the passage of time on the defendant’s ability to defend the claim was a crucial factor, particularly due to the depleted cogency of the evidence available, as were the lack of good reasons for the delay, and the very substantial length of the delay itself. This carefully reasoned judgment will provide detailed guidance for the trial of ‘stale’ claims.
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No need for court order for withdrawal of nutrition in case of PVS patients – Supreme Court

2 August 2018 by

persistent_vegetative_state1344818676044NHS Trust v Y (by his litigation friend, the Official Solicitor) and Others, Supreme Court 30 July 2018 – read judgment

The question for the Court was a simple but important one: whether the permission of a court was always required by law before doctors could withdraw feeding from a person in a persistent vegetative state.

Background

The patient at the heart of this case, known only as Y, had been an active man in his 50s before suffering a cardiac arrest which led to severe brain damage. He never regained consciousness and needed to be fed through a tube (known technically as “clinically assisted nutrition and hydration” or “CANH”) to stay alive.

Doctors had determined that Y was suffering from a “prolonged disorder of consciousness”known as “PDOC”.PDOC covers those who are in a persistent vegetative state and also those in a minimally conscious state, what we might informally call a coma.
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“Same roof” rule excluding compensation for abuse is unlawful – Court of Appeal

31 July 2018 by

w1200_h678_fcropJT v First Tier Tribunal [2018] EWCA Civ 1735 – read judgment

Between 1968 and 1975 the appellant JT was repeatedly assaulted and raped by her stepfather in her family home. Many years later, her assailant was prosecuted for those crimes and convicted on all counts in 2012. As a victim of violent sexual crime, JT applied for compensation under the Criminal Injuries Compensation Scheme. Her application was refused on the basis of the “same roof” rule, which stated that an award would not be made in respect of a criminal injury sustained before 1 October 1979

if, at the time of the incident giving rise to that injury, the applicant and the assailant were living together as members of the same family

This criterion may sound odd to anyone with a professional or even mild interest in crime stories, where the prime suspect is considered to be a member of the family of the victim, whether of rape, abuse, or even murder. But the thinking behind the rules  – and there has to be a bright line for eligibility – was that there should be a requirement that the victim and the assailant no longer live together. This would at least suffice to ensure that the rapist or abuser would not benefit from the award accruing to his victim, and, if possible, is brought to justice.
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New balance of probabilities test for suicide verdict – Owain Thomas QC

28 July 2018 by

31d3NghdjxL._SY445_QL70_R (Maughan) v HM Senior Coroner Oxfordshire and others  26 July 2018

The received wisdom, supported by all leading texts on coroner’s law is that in order for a Coroner or jury to return a verdict of suicide in an inquest, the fact that the deceased deliberately took his own life must be established beyond a reasonable doubt, or in other words, to the criminal standard of proof.

Jervis states:

At least since 1984 it has been consistently held in England that the standard of proof in suicide cases should be the same as in criminal prosecutions… although there is no crime involved and an inquest is not a criminal trial. The comparative difficulty in obtaining a conclusion of suicide may well mean that official statistics significantly underestimate the occurrence of suicide.

The Form 2 prescribed by the Rules for the purposes of recording the conclusion of the inquest itself specifies that the criminal standard of proof applies for unlawful killing and suicide conclusions. The Guidance issued by the Chief Coroner (at paragraph 56) says the same thing.

Maughan

In an important judgment of the Divisional Court in R (Maughan) v HM Senior Coroner Oxfordshire and others [2018] EWHC 1955 (Admin) that position has now changed. The Court, Leggatt LJ and Nicol J, has found that the standard of proof is the civil standard of proof, i.e. the balance of probabilities. There case may go as the Court gave permission to appeal.

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Let the silicon chip decide…

27 July 2018 by

1Cor podcast logoIn our latest podcast, Rosalind English talks to University of Pennsylvania professor of regulation Cary Coglianese and Yale researcher David Lehr about the future of rule making with machine-learning algorithms at our side. Regulation by robot; adjudication by algorithm: a different, but fairer world?

Episode 40 available for free download from iTunes, Audioboom or wherever you get your podcasts.

Cliff Richard and Private Investigations — Dr Richard Danbury

27 July 2018 by

Sir CliffThis article was originally published by the UK Constitutional Law Association, and can be found here.

 

There is an old joke, in which a man is driving through the countryside, lost. He stops his car in a small village to ask a local for directions. The local responds by saying: ‘you want to get where? Oh, to get there, I wouldn’t start from here.’

 

It’s a joke my children wouldn’t get, from another era, from an age before satnav and Google maps. Perhaps it should be retired. But it remains of contemporary relevance at least as a way of understanding the recent judgment of Richard v BBC. This is because it highlights the issue of framing: the way one perceives an issue dictates, to some extent, the way one attempts to deal with it. Framing is well known in journalism, as the way a journalist perceives an event – frames it – influences the way she will report on it. It also can be helpful in law. The way an advocate persuades a tribunal to perceive an event – frames it – dictates, to some extent, the conclusion the tribunal will reach. Every advocate knows that to get to a particular destination, it’s important to get the judge or jury to start from the right place.

 

Reading the 454 paragraphs of Mann J’s clear prose in Richard v BBC, we are left with little doubt how he framed the case. A well-beloved celebrity, Sir Cliff Richard, was unfairly accused of a horrendous crime, and was investigated, as was only right, by the police. But the police told the BBC this private information, which they shouldn’t have done, because they were pressurised into doing so by the BBC. The BBC prepared a report, dispatched a helicopter to shoot video through Sir Cliff’s windows of policemen searching his flat, and then published this to the world. This harmed Sir Cliff, who sued the police for informing the BBC, and the BBC for informing the world. Justice was done to Sir Cliff when Mann J resolved the dilemmas with which he was presented in favour of Sir Cliff.

 

Indeed, Mann J seems to have resolved all the dilemmas with which he was faced in favour of Sir Cliff. Many of these findings might be challenged, and some are supported by stronger reasoning than others. The BBC has indicated that it is considering appealing. This blog concentrates on one finding that can be challenged, as it is one that potentially has the most impact on public interest journalism. This is Mann J’s conclusion in paragraph 248 that a person under police investigation has a prima faciereasonable expectation of privacy in respect of that fact. The blog argues that, while an understandable conclusion given Mann J’s framing of Sir Cliff’s case, this finding erects a significant and substantial hurdle for those undertaking public interest journalism. That is a problem.

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Nuisance by Knotweed – Jeremy Hyam QC

25 July 2018 by

japanese-knotweed-1.jpgA radical problem determined by ‘straightforward application of established principles’? 

 Network Rail Infrastructure v. Stephen Williams (1) Robin Waistell (2) [2018] EWCA Civ 1514 – read judgment

Introduction

Hancock’s curse, monkey fungus, elephant ears, pea shooters, donkey rhubarb are all (bizarre) English names for Fallopia japonica or Japanese knotweed.  Although initially lauded for its beauty (it was so celebrated that in 1847 it was named by one Horticultural society as the ‘most interesting new ornamental plant of the year’) it is now well known as a fast growing and pernicious weed that is very difficult to eradicate. This is because it has a large underground network of roots (rhizomes). So bad is its destructive nature that since 2013 a seller of property is required to state whether Japanese knotweed is present on their property through a TA6 form – the property information form used for conveyancing.

Its destructive potential, and its potential for devaluation of property was at the heart of this recent decision of the Court of Appeal.

The appeal arose from the decision of Recorder Grubb sitting in Cardiff that the Appellant, Network Rail (‘NR’), was liable in nuisance by reason of the devaluation of the Claimant’s property due to the presence of knotweed on an embankment behind the Claimant’s property. The appeal raised a number of key issues as to what kinds of damage give rise to an actionable claim in the tort of private nuisance.

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Vicarious liability: Banking on bright lines

24 July 2018 by

the-royal-courts-of-justice-1648944_1280A bank requires its would-be recruits and some of its existing employees to undergo a medical. It sends them to the home of one particular, self-employed doctor. There, they undergo a medical examination, unaccompanied by anyone from the bank.

 

The doctor completes the bank’s proforma examination form, headed with its logo and entitled “Barclays Confidential Medical Report”. The form is detailed. It includes sections on chest “Inspiration” and “Expiration”, “Abdomen (including Genito-Urinary System)”. It contains a section for “Female applicants only”, asking whether they have suffered from menstrual or pregnancy disorders.

The doctor – Gordon Bates – subsequently dies. A large group of women sue the bank alleging that it is liable for sexual assaults carried out by the doctor during the examinations. The question for the Court of Appeal in Barclays Bank plc v Various Claimants [2018] EWCA Civ 1670 was whether the bank could be vicariously liable.

Background

Following Dr Bates’ death in 2009, 126 women came forward alleging that he had abused them during medical examinations carried out on behalf of Barclays between around 1968 and 1984. The police concluded in 2013 that, had he been alive, there would have been sufficient evidence to pursue a criminal prosecution against him.

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Round Up- Sir Cliff, stop and search, and the definition of fatherhood

23 July 2018 by

Conor Monighan brings us the latest updates in human rights law

Sir Cliff 2.jpg

In the News:

Sir Cliff Richard won his privacy case against the BBC, prompting a wide-ranging debate about press freedom.

Following an allegation of historic child sexual abuse, South Yorkshire Police raided Sir Cliff’s home in August 2014. The BBC decided to broadcast live footage of the raid which it filmed from a helicopter. Sir Cliff was interviewed under caution, but never charged.

The singer argued that the BBC’s coverage of the raid amounted to a ‘serious invasion’ of his right to privacy for which there was no lawful justification. In particular, he said his right to privacy under Article 8 ECHR had been undermined, and that the Data Protection Act 1998 was breached. The BBC submitted that it was tipped off about the police investigation, and felt it had a duty to pass the information to the public.

The High Court held that a suspect in a police investigation was capable of having a “reasonable expectation of privacy”, depending on the facts of his/ her situation. There was no “genuine public interest” in the police investigation. It further held that damage to reputation may form part of a breach of the right to privacy. Mr Justice Mann awarded initial damages of £210,000. The BBC must pay 65% of the damages, with South Yorkshire police paying the remainder.

Sir Cliff’s solicitor said his client had offered to settle for “reasonable” damages and an apology, but this gesture had been rebuffed.

The BBC is considering whether to appeal. Fran Unsworth, the BBC’s director of news and current affairs, apologised to Sir Cliff outside court by saying “in retrospect, there are things we would have done differently.” South Yorkshire Police also apologised for its mistakes.

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Sir Cliff v BBC: A new era for police investigations? — Patricia Londono

19 July 2018 by

Sir Cliff’s case against the BBC (Sir Cliff Richard OBE v (1) The British Broadcasting Corporation (2) Chief Constable of South Yorkshire Police ) following the raid on his home in August 2014 was billed as of  “enormous importance” in relation to whether the media are able to identify a suspect pre-charge, as well as having “massive implications” for the reporting of early phases of police investigations.  The first trial of its kind in this country, this article considers the ramifications of this High Court decision on the press reporting of those subject to police investigation.

On the morning of the 14 August 2014, the Berkshire home of Sir Cliff Richard was searched by South Yorkshire Police (‘SYP’) in connection with allegations of historic child sexual abuse.  The BBC broadcast the search more or less as it was taking place, giving it extensive coverage, including aerial shots by helicopter. The story was then picked up by other news media extending its coverage both in this country and aboard. Sir Cliff was not in the UK while his home was searched but viewed the broadcast.  He was subsequently questioned about the allegations but was neither arrested or charged and was told in 2016 that he was no longer under investigation.

At the heart of Sir Cliff’s claim was a challenge to media organisations in the reporting about those named by police as being subject to investigation for serious criminal offences.  In the face of increasing concern about the public naming of suspects questioned about historic sex offences, the Home Affairs Select Committee had recommended that those accused of such offences should be entitled to anonymity up to the point of charge (HC 962, Pre-Charge Bail, Seventeenth Report of Session 2014-15).

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Emergency services liable where responsibility is assumed and detrimental reliance has taken place

18 July 2018 by

Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB) (16 July 2018) – read judgment

This was an appeal on a preliminary issue from the decision of David Berkeley QC, sitting as the Recorder below. The question was whether the defendant chief constable owed a duty of care to the claimant’s partner, who had committed suicide.

The Recorder found that the defendant, either by his officers, employees or agents, failed expeditiously and/or adequately to deal with, and/or respond to, the information conveyed to them concerning the deceased in a 999 call made by the deceased’s mother.

King J upheld the Recorder’s findings and dismissed the appeal.
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Supreme Court hearing on local authorities’ liability for child abuse

15 July 2018 by

BOP-logo.jpgOn 16thJuly 2018 the Supreme Court will begin to hear legal arguments on the appeal of the children against the judgment of the Court of Appeal in CN and Anor v Poole Borough Council [2017] EWCA Civ 2185

I wrote up the original judgment here. The appeal was expedited and the Court will now consider the extent to which local authorities owe a common law duty to protect children from harm arising within the community where they live.

Background 

A quick reminder of the somewhat remarkable facts of the case. In 2006 Mrs N and her two sons CN and GN, then aged nine and seven (one of whom was severely disabled), moved to a housing estate in Poole. The accommodation was arranged by the council as the local housing authority. Over the ensuing years, the family suffered from the effects of extreme anti-social activities of a neighbouring family. This behaviour was frequently reported to the property owners, officers of the council and local police. A measure of the seriousness of the case can be gained by the fact that the Home Office became involved and commissioned an independent case review which reported critically on the reaction of the agencies.  The appellants’ distress was so great that one of them attempted suicide. They continued to suffer from their neighbours’ behaviour until they were provided with alternative accommodation in December 2011.
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Legal challenge to the Undercover Police Inquiry — will it succeed?

10 July 2018 by

 

Met_Police_Response_Car.jpgIt was reported on Thursday, 5 July 2018, that three core participants in the Undercover Policing Inquiry are intending to launch a legal challenge against the Home Secretary’s decision not to appoint a panel to sit with the Chair, Sir John Mitting.

They say a diverse panel is needed who will better understand the issues of racism, sexism and class discrimination that the inquiry will inevitably raise. So where has this challenge come from, and is it likely to succeed?

 

Background

Three years ago, Home Secretary Theresa May announced the establishment of the Inquiry, amid great controversy concerning the conduct of undercover police officers over a number of decades. Lord Justice Pitchford was appointed as chairman, but as a result of ill-health, he had to step down in 2017 and was replaced by Sir John Mitting (a judge of the High Court).

Mitting J has experience of surveillance and the security services, having been Vice-President of the controversial Investigatory Powers Tribunal and Chairman of the Special Immigration Appeals Commission.

However, his chairmanship of the inquiry has been mired in dispute, starting with a series of decisions to grant anonymity to many officers because public disclosure of their real names would breach their Article 8 rights to private and family life. Some had also raised concerns about Mitting J’s membership of the all-male Garrick Club.

Compounding matters, at a hearing on 5 February 2018, Phillippa Kaufmann QC, counsel for the victims (who had core participant status at the Inquiry), made the point that it was impossible to rule out wrongdoing, including deceptive sexual activity, on the basis of an individual’s personal or family circumstances. Mitting J responded:

Of course it is impossible to rule it out, but you can make a judgment about whether or not it is more or less likely. We have had examples of undercover male officers who have gone through more than one long-term permanent relationship, sometimes simultaneously. There are also officers who have reached a ripe old age who are still married to the same woman that they were married to as a very young man. The experience of life tells one that the latter person is less likely to have engaged in extramarital affairs than the former.

The comments were not well received and, later in the hearing, Mitting J acknowledged that he “may stand accused of being somewhat naive and a little old-fashioned” but that he would “own up to both of those things” and would take it into account and revisit his own views.

 

The Walk-Out

At the next hearing, on 21 March 2018, Ms Kaufmann made a number of submissions criticising the inquiry:

The first concerns the failure to ensure that the Inquiry is heard by exactly that, a panel representing a proper cross-section of society and in particular — and this is absolutely essential for reasons I’m going to come to — including individuals who have a proper informed experiential understanding of discrimination both on grounds of race and sex. Two issues that lie absolutely at the heart of this Inquiry. I’m sorry to say this, but instead we have the usual white upper middle class elderly gentleman whose life experiences are a million miles away from those who were spied upon. And the very narrow ambit of your experience is not something I’m simply creating out of thin air. It has been exemplified already in the way that you have approached these applications.

She then referred to Mitting J’s comments at the February hearing and concluded by inviting him to either recuse himself or appoint a panel to sit alongside him. She then walked out of the hearing, accompanied by her legal team and the core participants.

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New podcast from Law Pod UK

10 July 2018 by

20090327_radio_microphone_18Emma-Louise Fenelon recently interviewed Richard Booth QC about a successful injunction application to prevent a gross misconduct disciplinary hearing. You can hear the interview on Episode 39 of Law Pod UK.

The Claimant, represented by Jeremy Hyam QC, was a consultant forensic psychiatrist whose employment duties included working on the healthcare wing at Lewes prison. Following the death in custody of an inmate on the healthcare wing who had been under the Claimant’s care, the Trust initiated an investigation into the Claimant’s conduct and capability. The report of the investigation made a number of findings of failure to meet professional standards in particular with respect to the record keeping of ward reviews, but put them in the context of an under-resourced prison service.  Based on the report, the Trust’s case manager purported to convene a hearing to consider disciplinary action for gross misconduct against the Claimant.

An injunction was sought to prevent such hearing going ahead on the basis that, taken at its highest, the content of the investigation report did not justify a charge of gross misconduct; that the Trust’s policy definition of gross misconduct was lower that normally set by the common law; and that the Case Manager’s management statement of case went beyond the findings in the investigation report. Granting the injunction on an interim basis, the Court concluded that there were serious issues to be tried on all the issues raised by the Claimant and the balance of convenience was clearly in favour of the grant of the injunction.

The judgment can be found here: http://www.bailii.org/ew/cases/EWHC/QB/2018/1535.html

Law Pod UK continues to go from strength to strength and has surpassed 55k listens. All episodes are freely available to listen or download from a number of podcast platforms, including iTunes, Audioboom and The Podcast App.

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