As has been long-heralded, the law on universal jurisdiction changed today. The change is contained in the new Police Reform and Social Responsibility Act and means that although anyone can initiate war crimes proceedings, the consent of the Director of Public Prosecutions will be required before an arrest warrant is issued. The Justice Minister Ken Clarke said:
We are clear about our international obligations and these new changes to existing law will ensure the balance is struck between ensuring those who are accused of such heinous crimes do not escape justice and that universal jurisdiction cases are only proceeded with on the basis of solid evidence that is likely to lead to a successful prosecution.
You would have to be a monk or, at any rate, in an entirely internet-free zone, not to have had your recent days troubled by endless GDPR traffic. The tiniest charity holding your name and email address up to the data behemoths have asked, in different ways, for your consent for them to hold your personal data. You may have observed the frankness and simplicity of the former’s requests and the weaseliness of the latter’s, who try to make it rather difficult for you to say no, indeed to understand what precisely they are asking you to do.
Just in case you have not looked at it, here is the Regulation. It is actually a good deal easier to understand than a lot of the summaries of it.
This lack of transparency in these consent forms/privacy statements had not gone unnoticed by one of Europe’s more indefatigable privacy sleuths. Max Schrems, an Austrian lawyer, who, at 30 years of age, has already been to the EU top court twice (see here and here), moved fast. By the end of GDPR day last Friday, 25 May, he sued global platforms with multibillion-euro complaints. 3 complaints said to be valued at €3.9 billion were filed in the early hours against Facebook and two subsidiaries, WhatsApp, and Instagram, via data regulators in Austria, Belgium and Germany. Another complaint valued at €3.7 billion was lodged with France’s CNIL in the case of Google’s Android operating system.
NHS Trust v DE  EWHC 2562 (Fam) 16 August 2013 –read judgment
For the first time a UK court has permitted non therapeutic sterilisation of a male individual who, through learning disabilities, was unable to consent to such a procedure.
The NHS Foundation Trust made an application in the Court of Protection for a raft of declarations in relation to a 37 man, DE, who suffers from a profound learning disability. After fifteen years of hard work and sensitive care by his parents and social workers he had achieved a modest measure of autonomy in his day to day life and had a long standing and loving relationship with a woman, PQ, who is also learning disabled.
But things changed dramatically for the worst in 2009, when PQ became pregnant and had a child. The consequences were profound for both families; legitimate concerns that DE may not have capacity to consent to sexual relations meant that protective measures had to be put in place to ensure that DE and PQ were not alone and DE became supervised at all times. As a result of the distress he felt following this event DE was clear that he did not want any more children. Evidence before the court suggested that his relationship “nearly broke under the strain.” Continue reading →
The Times (amongstothers) today deserves a spell on the legal naughty step. Its headline announces that a judge’s decision “opens way to divorces by Sharia“. One might expect therefore to find that the judgment giving rise to the headline – the decision of Baker J in the Family Court in AI v MT – was about Sharia law, or otherwise had something to do with it. In fact the judgment concerned a Jewish divorce under the auspices of the Beth Din, and had nothing to do with Sharia at all.
The judge approved a final order in matrimonial proceedings by consent. That consent order had arisen from the Beth Din. It did not elevate the Beth Din to the status of the High Court. To the contrary, the judge stated that the following legal principles applied (paras -):
This week saw the Government’s controversial Police, Crime, Sentencing and Courts Bill undergo its second reading in the House of Lords. The proposed legislation, which would broaden police powers, enable the extraction of more information from mobile phones and impose harsher sentences for assaults on emergency workers, has drawn strong criticism for its predicted discriminatory impact.
Two provisions have attracted particular concern. First, the introduction of Serious Violence Reduction Orders (SVROs), which would authorise the police to stop and search people on account of their previous offending history without requiring ‘reasonable grounds’ to do so. Such discretionary powers are predicted to have a disproportionate effect on black people, given that police figures demonstrate they are already nine times more likely to be stopped and searched than white people. In an open letter published on Monday, criminal justice organisation Liberty said that the law ‘effectively creates an individualised, suspicionless stop and search power, entirely untethered to a specific and objectively verifiable threat’ and risks ‘compound[ing] discrimination’.
I have blogged before on the Pandora’s box of ethical problems and dilemmas emerging out of our increasing understanding of genetic disorders (see here, here and here), and here is a case that encompasses some of the most difficult of them. Continue reading →
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.
This ruling from Strasbourg sheds little light on how Article 8 can help adoption procedure, but it does illustrate how courts and agencies are having to square up to the deepening crisis in adoption rates.
Newspaper and charity campaigns are vocal about this issue but little attention is paid to the very difficult business of balancing the needs of children against those of the biological or (prospective) adoptive parents.
To celebrate reaching 200,000 listens, and in the event that any of our listeners wish to keep their grey matter ticking over during the heatwave/whilst sipping poolside pina coladas, we have prepared a Summer “Greatest Hits” playlist of our most popular episodes of 2019 so far. We hope you enjoy it, and wish all of our listeners a relaxing summer break.
A veritable powerhouse panel respond to Lord Sumption’s 2019 Reith lectures, as part of the Constitutional and Administrative Bar Association’s summer conference featuring Lord Dyson, Sir Stephen Laws, Professor Vernon Bogdanor, Professor Meg Russell, Lord Falconer and Chaired by Mrs Justice Thornton. This episode is followed by a conversation between Lord Sumption and Lord Justice Singh, responding to the panel. Enjoy!
2. Consent and Causation with Robert Kellar QC (Episode 70)
Emma-Louise Fenelon talks to Robert Kellar about consent and causation, discussing the development of the law since Chester v Afshar through to Khan v MNX.
Another week and another judgment about adoption. This time it is a decision of the Supreme Court about the Scottish family law system. Whereas last week’s post was about a case where children should have been placed into adoption, but were not, this case concerned a mother who opposed an adoption order being made for her child. The mother challenged the legislation which allowed the court to make an adoption order without her consent, arguing that it was incompatible with her Article 8 rights to private and family life. However, the Supreme Court ruled that there was no breach of the Convention.
The appellant mother argued that s.31 of the Adoption and Children (Scotland) Act 2007 was incompatible with the Convention. This would mean it was unlawful, as statutory provisions incompatible with the ECHR are not within the legislative competence of the Scottish Parliament under s.29(2)(d) of the Scotland Act 1998. (This is different to the UK Parliament in Westminster, which is able to legislate contrary to the ECHR, and the most the courts can do under the Human Rights Act is make a declaration of incompatibility.)
JM (a child), Re EWHC 2832 (Fam), 7 October 2015 – read judgment
Mostyn J, ruling in the Family Division that a child should receive surgical treatment for bone cancer against the wishes of his parents, has referred to Ian McEwan’s “excellent” novel The Children Act (Jonathan Cape 2014), which is about a 17 year old Jehovah’s Witness refusing a blood transfusion. The judge noted however that the book was in fact “incorrectly titled”:
a question of whether a medical procedure should be forced on a 16 or 17 year old should be sought solely under the High Court’s inherent jurisdiction, and not under the Children Act.
This case on the other hand concerned a ten year old child, J. The NHS Trust sought permission to perform urgent surgery of a serious nature on his right jawbone, where he has a very rare aggressive cancer. Its medical name is a craniofacial osteosarcoma, presenting a tumour in the bone of about 4 inches long and 1½ inches wide. The unambiguous medical evidence before the court was that if it was not removed very soon then in 6 months to a year J would die “a brutal and agonising death”. The oncologist had spelt this out in unflinching detail:
J will not slip peacefully away. The cancer will likely invade his nerve system affecting basic functions such as speaking, breathing and eating. His head will swell up grotesquely. His eyes may become closed by swelling. A tracheostomy may be needed to allow breathing. Above all, the pain will likely be excruciating.
This is a case in which Philip Havers QC of 1 Crown Office Row appeared for the General Dental Council; he is not the author of this post.
The General Dental Council v Savery and others  EWHC 3011 (Admin) – Read judgment
Mr Justice Sales in the High Court has ruled that the General Dental Council’s (GDC) use and disclosure of the dental records of fourteen patients of a registered dentist who was the subject of investigation was lawful.
The court also offered general guidance about how the GDC may proceed (particularly by reference to Article 8 of the European Convention on Human Rights, the right to privacy and family life) when it wishes to investigate allegations against a dentist of impairment of fitness to practise by reference to confidential patient records in the absence of consent from the patients in question.
Eleven Winterbourne View staff have pleaded guilty to 38 charges of ill-treatment and neglect of a mental health patient under s127 Mental Health Act 1983 (MHA). In this post I want to consider why we need ‘special’ offences like s127 MHA and also s44 Mental Capacity Act 2005 (MCA), rather than prosecuting crimes in care settings using more ‘mainstream’ offences.
The UN Convention on the Rights of Persons with Disabilities (CRPD), with articles emphasising access to justice (Article 13) and equal recognition before the law (Article 12) encourages us to think about how we can ensure disabled people have effective access to the law that protects us all before we develop parallel ‘special’ systems of rights protection (see, for example, Inclusion Europe, European Disability Forum). So my question is: why are we using ‘special’ offences of ill-treatment and neglect to prosecute crimes that occur in care, rather than the ordinary ‘offences against the person’ those outside of care rely upon?
The High Court has struck out a claim that the disclosure of certain personal information made by a charity to the claimant’s GP was unlawful. Although only summary, this judgment goes to the heart of what we believe data protection to be about. As you will tell from my somewhat trenchant comments at the end of this post, I find it difficult to accept the main conclusion in this ruling.
The LGBT Foundation provides services including counselling and health advice. The claimant sought to access the charity’s services by completing a self-referral form in 2016. The form gave an option for the self-referring individual to consent to information being disclosed to their GP, and stated that the charity would break confidentiality without the individual’s consent if there was reason to be seriously concerned about their welfare. Mr Scott gave his GP’s details in the form. He also stated in the form that he no longer wished to be alive, detailed a previous suicide attempt, said that he had recently been self-harming and that he continued to suffer problems from drug use.
A sessional health and wellbeing officer at the charity conducted an intake assessment for Mr Scott to ascertain what support would be best for him. She told him of the confidentiality policy, including the provision that any information he disclosed would be passed on if the charity considered him to be at risk. In this interview he gave further details of drug use, self-harm and suicidal thoughts. The health officer paused the assessment and consulted a colleague, who advised her to inform Mr Scott that they would be contacting his GP because they had concerns about his welfare. The charity concluded it was at that time unable to provide him with the services he sought from them because of his ongoing drug use. They passed the information on to Mr Scott’s GP via a telephone call. This information was in due course recorded in his medical records.
Meiklejohn v St George’s Healthcare NHS Trust and Another  EWCA Civ 120 – read judgment
Richard Booth QC of 1 Crown Office Row represented the appellant in this case. He has nothing to do with the writing of this post.
This was an appeal against the finding by HHJ Robinson, sitting as a High Court Judge, that there was no duty of care owed to the appellant in respect of his rare genetic disorder ( EWHC 469 (QB),  Med. L.R. 191). See my previous post for the factual and medical background of the claim. Briefly, the appellant suffered from a rare genetic version of the platelet insufficiency disorder, aplastic anemia (AA), the disorder in question being known as Dyskeratosis Congenita (“DC”). Continue reading →
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