In a pithy parting shot to the Home Secretary, Lady Hale has given the unanimous judgment of the Supreme Court on the question of whether a person subject to a home curfew under immigration powers had been falsely imprisoned at common law and whether that concept should now be aligned with the concept of deprivation of liberty in article 5 of the ECHR. The Court decided the case against the defendant, as did every court below (the Blog covered the Court of Appeal’s decision here). The defendant had been required to pay the claimant £4,000.
False imprisonment at common law
The opening sentence sets the scene:
The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights.
The claimant had been subject to an overnight curfew, enforced by way of monitoring equipment and an electronic tag, under paragraph 2(5) of Schedule 3 of the Immigration Act 1971.
Conor Monighan brings us the latest updates in human rights law
In the News:
The Government’s ant-slavery tsar has severely criticised the government for failing to take action on child slavery. Dame Sara Thornton, who was appointed in 2019, said that the government was failing to make changes as promised.
Her concerns relate to the Independent Child Trafficking Guardian (ICTG) scheme, which is designed to give vulnerable children one-to-one support. Under the scheme, guardians assist children with matters ranging from GP appointments to dealing with social services. In 2016 ministers pledged to implement the scheme, but progress has since stalled.
Dame Sara said that she wrote to the Home Secretary in January outlining her concerns and highlighting the fact that the scheme only covers a third of the country. However, she has not received a response.
In a further development, Dame Sara Thornton has said that the power to intervene in child trafficking cases should be taken away from the Home Office. She argues that local authorities are much better placed to provide support. However, others have pointed out that councils lack the resources and power to adequately address child slavery.
The number of children referred to the Home Office as being potential victims of modern slavery appears to be rising. Over 2000 children were identified between September 2018 – 2019, representing a 66% rise on the previous year.
More from the Independent here and the Guardian here.
Tucked away on page 48 of the Conservative Party 2019 election manifesto, the following passage could be found in a section entitled “Protecting our Democracy”:
After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.
That is something of a laundry list of many of the most charged constitutional issues faced by the United Kingdom. But of all the matters cited, the one which has received perhaps the most attention of late is the Government’s apparent intention to consider changes to our system of judicial review.
National concern about coronavirus rose further this week, as the tally of UK cases rose to 36. The government has said that it will publish an emergency ‘battle plan’ for tackling the virus, based on existing contingency plans for responding to a pandemic flu outbreak. This will include ministers responsible for coronavirus in each department, as well as a public information campaign run from the Cabinet Office; if the virus spreads further, it could also include banning big events, closing schools, and advising against use of public transport. When questioned yesterday on whether cities will be isolated, as in China, Health Secretary Matt Hancock was emphatic that no tactics are “off the table” in the government’s coronavirus strategy.
The Johnson government is facing major setbacks elsewhere this week.
The High Court has ruled that the health authorities owed a duty of care to the daughter of their patient who suffered from the hereditary neurodegenerative order Huntington’s Chorea, to inform her about his condition. But in the circumstances, Yip J concluded that the duty was not breached and that causation had not been established.
The facts of this case are set out in our previous post about the interlocutory proceedings before Nicol J. It will be recalled that the father had killed the claimant’s mother and was detained in a psychiatric hospital at the time of these events.
The outcome of the hearing on the merits has been awaited with anticipation because the finding of an obligation on a doctor to inform a third party may undermine the doctor-patient confidentiality rule, and this in turn would have a significant impact on the health services, particularly as genetic medicine increases the number of diagnoses that affect not just the individual patients but their relatives as well.
The issues before the Court
Now that the full trial of the merits of this case has been held, we have a more nuanced picture of the legal duties and defences. For a start, there were a number of defendants, not just the father’s clinician, but the medical team that made up the family therapy group that treated both claimant and her father. Furthermore evidence has come to light about the claimant’s attitude to the dilemma that she faced which has had implications for the decision on causation.
But first, let’s look at the issues that Yip J had to determine in this important case involving the implications for medical confidentiality in the context of hereditary disease.
i) Did the defendants (or any of them) owe a relevant duty of care to the claimant?
ii) If so, what was the nature and scope of that duty?
iii) Did any duty that existed, require that the claimant be given sufficient information for her to be aware of the genetic risk at a stage that would have allowed for her to undergo genetic testing and termination of her pregnancy?
iv) If a duty of care was owed, did the defendants (or any of them) breach that duty by failing to give her information about the risk that she might have a genetic condition while it was open to her to opt to terminate her pregnancy?
v) If there was a breach of duty, did it cause the continuation of the claimant’s pregnancy when it would otherwise have been terminated? (This involves consideration of whether the claimant would in fact have had the opportunity to undergo genetic testing and a termination in time but for the breach, and whether she would have chosen to do so.)
Airport expansion has taken a long and winding road, not least at Heathrow. But the proponents of the 3rd runway at Heathrow would have been heartened by the Secretary of State’s decision in June 2018 to set out a policy which preferred Heathrow over Gatwick and which was designed to steer planning processes thereafter in support of the new runway.
It is this decision which has just been declared unlawful by the Court of Appeal.
I am afraid this is where the planning jargon starts and the acronyms proliferate. The challenged decision was an Airports National Policy Statement (ANPS). Under planning legislation, an ANPS “sets the fundamental framework within which further decisions will be taken,” as the CA put it in . Those further decisions include the grant of permission for the particular project, done through the Development Consent Order (DCO) process. But you cannot challenge that fundamental framework later in the DCO process; you cannot say later, for instance, that expansion is not necessary at all, or there is a better alternative, say, Gatwick, if the ANPS has decided otherwise.
The intersection between technology and human rights is growing exponentially. In places, the growth is immensely productive. The internet has become integral to how we communicate in moments of historic crisis and transformation. Social networks have played a complex and contradictory role in pivotal episodes from the Arab Spring to #MeToo. For more than three billion people, the internet directly facilitates access to news and information, religion and politics, markets and trade, and even justice. In this country, half the population gets their news from social media. In 2016, a report from the Human Rights Council of the United Nations General Assembly declared access to the internet to be a basic human right. This blog post is itself both byproduct and contributor to the phenomenon.
Can the police indefinitely retain an individual’s DNA profile, fingerprints and photograph after they have been convicted?
That was the question before the European Court of Human Rights (ECtHR) in Gaughran v UK (no. 45245/15, ECHR 2020). This judgment — which was given for the applicant — is of interest both on the merits and as an example of the way the Court continues to approach issues of this kind.
Earlier this month, the Scottish Parliament’s Justice Sub-Committee on Policing published a report which concluded that live facial recognition technology is currently “not fit” for use by Police Scotland.
Police Scotland had initially planned to introduce live facial recognition technology (“the technology”) in 2026. However, this has now been called into question as a result of the report’s findings – that the technology is extremely inaccurate, discriminatory, and ineffective. Not only that, but it also noted that the technology would be a “radical departure” from Police Scotland’s fundamental principle of policing by consent.
In light of the above, the Sub-Committee concluded that there would be “no justifiable basis” for Police Scotland to invest in the technology.
Police Scotland agreed – at least for the time being – and confirmed in the report that they will not introduce the technology at this time. Instead, they will engage in a wider debate with various stakeholders to ensure that the necessary safeguards are in place before introducing it. The Sub-Committee believed that such a debate was essential in order to assess the necessity and accuracy of the technology, as well as the potential impact it could have on people and communities.
The report is undoubtedly significant as it reaffirms that the current state of the technology is ineffective. It therefore strengthens the argument that we should have a much wider debate about the technology before we ever introduce it onto our streets. This is important not only on a practical level but also from a human rights perspective, especially set against the backdrop of the technology’s controversial use elsewhere.
According to Jewish religious law, if a husband refuses to grant his wife a divorce (a “get”) she has no recourse to the Jewish authorities for a certificate and must either be content with a civil divorce, or remain a “chained woman” or “argunot”. One of the consequences of this system is that any child she may have by a subsequent relationship is considered a “manner”, or illegitimate.
For the first time in legal history Anthony Metzer QC of Goldsmith’s Chambers has used the secular criminal law to persuade a recalcitrant husband to grant his client a “get”, the threat of a prosecution for the offence of coercive and controlling behaviour leading to a maximum prison sentence of five years. This is a fascinating breakthrough and has implications not only for other “chained women” in Jewish communities but in the wider world of religious traditions where women are often the victim of unfair religious laws.
Rosalind English discusses the implications of this case with Mr Metzer QC in this week’s episode (No. 103) of Law Pod UK. You may want to refresh your memories on the use of the offence of criminal and coercive behaviour in proceedings in the family courts by listening to Rosalind’s interview with Clare Ciborowska of 1 Crown Office Row in Episode 43.
The following article comes from a student of IP law at Georgetown University in Washington DC. Although somewhat outside the range of subjects usually covered by UKHRB I feel it is sufficiently important to keep up to date with this difficult and fast moving area, as law tries to keep pace with technological developments in this field. So here we have John Butcher’s survey of the field.
Inventors come from many different disciplines and fields of study. Arguably one of the most important are biotechnicians whose inventions dramatically help to improve our standards of living. From healing the body of diseases to restoring the environment, biotechnology pervades all aspects of life.
While that sounds really nice, you might be wondering what exactly falls under biotechnology?
What is Biotechnology?
Biotechnology in the United Kingdom is the industry of organisms that manufacture commercial products. Interestingly, it can be quite controversial at times i.e. stem cells and gene cloning. Despite this, biotechnology is integral to advancements in the healthcare and pharmaceutical industry.
Currently, most industrial biotechnological expenditure in the UK is in the field of healthcare. Consequently, the UK is the leader in Europe in the development of biopharmaceuticals – by quite a lead.
But it would be too narrow to characterise the case as being about trans rights only. At its core, it concerns the role of the police in responding to reports of hate incidents which do not amount to criminal behaviour. As such, the findings of Julian Knowles J have implications that extend beyond trans rights, impacting on how police should respond to reports of racism, antisemitism, Islamophobia, and other forms of discrimination that fall short of criminality. Clearly, the case raises extremely important questions. The Claimant already has permission to appeal to the Court of Appeal and a leapfrog certificate, allowing him to go directly to the Supreme Court to ask for permission to appeal there.
Tonight, in the Old Hall, Lincoln’s Inn, Judge Robert Spano will deliver the inaugural Bonavero Institute Human Rights Lecture entitled “The Democratic Virtues of Human Rights Law” in which he responds to Lord Sumption’s Reith Lectures on the BBC last year. Jonathon Sumption will be there himself to respond to Robert Spano’s observations. The event, which is moderated by Helen Mountfield QC, principal of Mansfield College, Oxford, will be recorded and filmed, and the director of the Bonavero Institute Catherine O’Regan (whom I interviewed in Episode 97 on Law Pod UK has kindly given permission for the audio recording to be republished on Law Pod UK in due course.
So, here is Robert Spano in his own words.
At the outset let me say this, I bring an external perspective, I will not be commenting on domestic political issues or developments in the British legal system. For that I am not equipped. Rather, I will begin by focussing in general on Lord Sumption’s views on the expanding role of law at the expense of politics before engaging with his third lecture, entitled ‘Human Rights and Wrongs’, and his criticism of the European Court of Human Rights. I proceed in this manner as it is difficult to disentangle the third lecture from Lord Sumption’s overall thesis. The five lectures must in other words fairly be read as a whole. When referring to his lectures, I will use the language Lord Sumption deploys in his published volume entitled Trials of the State – Law and the Decline of Politics (Profile Books, London (2019). In my intervention, I offer my personal views which should not be ascribed to the Court on which I serve.
If your domestic mutt makes friends with a wolf, and is prepared to eat and play with this visitor from the wild in your garden, does that deprive said wolf of the protection of the EU rules on the protection of listed species? AG Kokott at the European Court of Justice has just handed down her opinion on this tricky question of conservation referred to the Court.
The Habitats Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora calls for the introduction of a system of strict protection for species, such as the wolf (Canis lupus), which are listed in Annex IV(a) thereto. However, must that system of protection also be applied in the case where a wolf plays with dogs in a village? That is the question that has been put to the Court in these proceedings. As the AG continues
Even in its specific form, that question may be of greater practical importance than one might think. The answer to it will be decisive above all, however, in determining whether the substantively extensive protection of species provided for in the Habitats Directive is primarily relevant to natural and semi-natural areas, that is to say, in particular, to activities such as agriculture, forestry and hunting, or whether it is to be taken into account without restriction in all human activities, such as the operation of roads.
You only have to think about this for a few seconds before realising the far reaching implications of the latter interpretation.
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