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The Covid pandemic has brought the mental health of those within the legal profession into sharp relief. For some people, the past 18 months will have been the first time they have discussed their mental health with clients, colleagues, and supervisors.
To celebrate reaching 500,000 listens on the podcast, I wanted to do something a little different. In this episode I speak to Rachel Francis and Joanna Fleck, two extraordinary women, about their new book: Vicarious Trauma in the Legal Profession: a practical guide to trauma, burnout and collective care, which comes highly recommended to anyone dealing with trauma in their work.
Baroness Helena Kennedy QC has described the book as “a wake-up call about what is happening to law and access to justice – but it is also a clarion as to what is happening to lawyers.”
The book is published by Legal Action Group and is available to buy here (from Lag) and here (from Waterstones).
If you are interested in bulk buys of the book, please contact Esther Pilger at EPilger@lag.org.uk
The Supreme Court has rejected a challenge against the two-child limit on the individual element of child tax credit payments. In a unanimous judgment delivered by Lord Reed, the Court held that the provision imposing the limit was not contrary to the appellants’ Convention rights.
The Court found that the rule was potentially indirectly discriminatory against women, as well as children living in households with more than two children. However, any such discrimination could be validly justified and was considered to be proportionate on the basis of ‘protecting the economic well-being of the country’.
Background
Child tax credit is a welfare benefit scheme designed to provide financial support to families with children. The individual element of child tax credit, which is the subject of this case, entitles an individual to £2,830 per annum in respect of each child they are responsible for.
In 2015, the Conservative Party announced as part of that year’s General Election manifesto that they intended to limit a person’s entitlement to child tax credit to just two children, unless one of a narrow range of prescribed exceptions applied. This was part of a wider policy pledge to substantially reduce the amount spent on welfare benefits.
In March 2016, a bill was passed to that effect, and the limit came into force in April 2017.
On Thursday, the Crown Prosecution Service announced that they would no longer prosecute migrants uninvolved in any criminal activity other than illegal entry to the UK. The development, supported by the notion that these cases can be better dealt with by administrative deportation than by prison overcrowding, is being widely reported as a blow to the Home Secretary’s Tuesday announcement of the Nationality and Borders Bill. The Bill seeks to further differentiate between migrants who enter the UK illegally and those who do not. Significant changes introduced by the new legislation are the increase of the maximum sentence for illegal entry from six months to twelve, introduced at clause 37, and the removal of protections for migrants who are escorted to the UK by the Border Force, who currently technically enter the country legally. The Bill will require that migrants have prior authorisation to enter the country to avoid entering illegally. How the CPS guidance, apparently adopted after ‘close consultation with the Home Office’ will interact with the new law, if passed, remains to be seen.
The United Kingdom has been ordered by the European Court of Human Rights to pay damages and legal costs to a social worker who was unfairly accused of professional misconduct by a Family Court judge.
Facts
The applicant was a social worker who was called to give evidence in childcare proceedings concerning the alleged sexual abuse of a number of siblings.
The Family Court rejected the allegations of sexual abuse. The judge also found that the applicant was the principal instigator in a “joint enterprise to obtain evidence to prove the sexual abuse allegations, irrespective of the underlying truth and relevant professional guidelines”; that she had lied to the court about important aspects of the investigation; and that she had subjected one of the children involved to emotional abuse.
The applicant first became aware of these adverse findings at the end of the hearing when the judge gave a summary oral judgment. Prior to finalising the judgment, she was able to make some submissions, including in respect of the decision not to grant her anonymity. However, the adverse findings and the decision not to grant her anonymity were maintained. The judge also directed that the judgment be sent to the authority to which the applicant had since been re-assigned, and advised that his findings should be shared with other local authorities where she had worked and with the relevant professional bodies.
Her local authority assignment was then terminated without notice.
The local authority and the applicant sought to appeal against the Family Court judgment. Before the Court of Appeal, the case was argued as a procedural violation, namely that the highly adverse findings “came out of the blue” and had the potential to impact adversely on her employment prospects and personal life, yet she had not been given any opportunity to know of or meet the allegations during the course of the trial process. The Court of Appeal found that the criticism would breach her rights under Art. 8 of the Convention if the judgment were allowed to stand. The process by which the judge arrived at the criticisms was “manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art.8.” His findings were set aside, in the sense that “they no longer stood and had no validity”. The effect was to be “as if those findings, or potential findings, had never been made in any form by the judge” (§§ 16 – 20).
The focus of this judgment was on the jurisdiction, if any, that the High Court Family Division has to maintain a Reporting Restriction Order (‘RRO’) prohibiting the naming of any medical clinicians as being involved in the care and treatment of a child who had been the subject of “end of life” proceedings before the High Court prior to their death, and where an RRO had been made at that time preventing the identification of any of the treating clinicians and staff until further order.
Each of the children, Zainab Abbasi and Isaiah Haastrup, had been the subject of end of life proceedings under the inherent jurisdiction of the High Court, in which the issue was whether life-support should be withdrawn from them. Each of the two children died; Zainab Abbasi dying after the issue of proceedings but before the court could conduct a substantive adjudication, and Isaiah Haastrup dying following the removal of life-sustaining ventilation at the conclusion of a full legal process including an application to the Court of Appeal. In both cases, widely drawn RROs were made during the proceedings.
Johnson’s promise to support the LGBTQ+ community also came after the first meeting of the Ban Conversion Therapy Legal Forum, a group of lawyers, academics, cross-party MPs and campaigners, chaired by Baroness Helena Kennedy. The group released a statement advising the government that the “best way of banning conversion therapy is by using a combination of both civil and criminal remedies” and that the legislation “must be human rights compliant”, prioritising the rights of victims and potential victims. The Forum acknowledged a ban might impact certain other rights including freedom of religion and belief and freedom of expression, but said the harm caused to LGBTQ+ people, which “amounts to degrading and inhuman treatment”, justified a proportionate restriction of those rights.
In other news:
The All-Party Parliamentary Group on Democracy and the Constitution released a report on its independent inquiry into whether the rights to freedom of expression and peaceful assembly were respected in the policing of the Clapham Common vigil for Sarah Everard on 13 March and the “Kill the Bill” protests in Bristol from 26-29 March. The report, published 1 July, found that the Metropolitan Police Service (MPS) and the Avon and Somerset Constabulary (A&SC) “failed to understand the nature of the right to protest and how it must be applied in practice” and that their use of power “exacerbated tensions and increased the risk of violence”. The APPG recommended a new statutory code for the right to protest and policing of protests; removing clauses 55-61 of the Police, Crime, Sentencing and Courts Bill; and a consultation on the creation of an Independent Protest Commission.
The offence of “Rechtsbeugung” in German law is not easy to translate. The best match we have for it in English is the offence of “misconduct in public office”. Misfeasance in public office, according to Archibold, is committed by
(a) a public officer acting as such who
(b) wilfully neglects to perform his duty and/or wilfully misconducts himself
(c) to such a degree as to amount to an abuse of the public’s trust in the office holder,
(d) without reasonable justification.
I have not been able to find any examples of judges being prosecuted for misconduct in public office in this country. However, this past fortnight in Germany, no less than eight searches have been carried out in the homes of judges, their expert witnesses, a guardian ad litem and others associated with a controversial ruling regarding Covid-19 restrictions. I posted on Judge Christian Dettmar’s ruling in early April and subsequent investigation here. Reminder: Judge Dettmar issued an injunction against two schools in Weimar to stop them imposing masking, social distancing and testing. This was in his view necessary in order to avert (further) compromising of children’s welfare.
In Episode 146 Emma-Louise Fenelon speaks to Richard Mumford and Rajkiran Barhey about recent developments in medical law.
All of the cases discussed during this episode are covered in the most recent issue of the QMLR, available here. We highly recommend the new QMLR website to our listeners, who we hope will find the archive of previous articles and the search function (making it possible to search by keyword, category and author) enormously helpful.
Over ten years ago I posted on the wasteful prohibition under the EU Animal By-Product Regulation on feeding meat and bone meal – waste from slaughterhouses – to omnivorous farm animals, poultry and pigs. See Pigswill and public health: a load of EU Bull, 7 January 2011. While this regulation has been in force the protein needed by these fast growing animals has had to come from expensive soybeans, imported from South America where hundreds of miles of rainforests have been laid waste to make room for the soy crop. As you will remember from that post, the ban was introduced following the BSE crisis, itself a possibly predictable consequence of feeding spinal tissue to vegetarian ruminants.
This ban extended to anyone feeding food scraps to farmed animals, no matter how small the operation and how innocent the scraps. As I said in my last post,
Anyone with a few hens pecking away in the backyard needs to look sharp: a “farmed animal” for the purpose of the Regulation means any animal kept for the provision of food, and a couple of eggs a week may bring a Defra van trundling up the drive at any moment.
And in 2004 our very own Prime Minister, then MP for Henley, reported that in his constituency a hotel
must now pay an extra £1,000 a year to a licensed collector, whose responsibility it is to remove wet waste that previously went to a pigswill feeder. Given that there is room for only three years’ waste in our landfill sites, that is not the cleanest and greenest solution. It is estimated that the ban on swill feeding is generating an extra 1.7 million tonnes of waste per year, and that which does not fill up our landfill sites must be going down our drains, clogging up the sewers and attracting vermin
Finally it seems to have dawned on the EU Commission that this is a very un-green piece of legislation in an era where the EU obliges its member states by draconian legislation to recycle, limit landfill, restrict incineration, cut down on carbon emissions and save energy.
Figures published by the Ministry of Justice showed that the backlog of crown court cases had risen to yet another record high: by 31 March this year, there were almost 60,000 outstanding cases, a rise of 45 per cent on the previous year. In the magistrates’ courts, that figure stood at 400,000, a rise of 21 per cent.
Waiting times have hiked accordingly: the average crown court case it now taking just under a year, 363 days, to be heard. Some trials are already being scheduled for 2023.
These latest figures follow the Ministry of Justice’s End-to-End Rape Review Report on Findings and Actions, covered on last week’s round-up, which revealed that processing times for rape complainants were particularly egregious, averaging around a thousand days between the commission of an offence and the conclusion of a trial.
Several MPs were quick to diagnose root causes of the criminal justice system’s dismal condition. Shadow justice secretary David Lammy complained that ‘the Conservatives are forcing victims of rape, domestic abuse and violent assault to wait months and years for justice if they get it at all’, blaming the compounded effect of ‘the government’s decade of court closures, combined with its incompetent response to the pandemic’. Liberal Democrat MP Wera Hobhouse also pointed to pre-coronavirus underfunding, warning that ‘ministers must not use Covid as an excuse for this backlog, or to undermine the fundamental right to trial by jury.’
A collective submission made by special advocates (security-cleared barristers who appear in secret proceedings) has been cleared for publication. This document is a response to the review being performed by Sir Duncan Ouseley, looking into the operation of closed material procedures (CMPs) under the Justice and Security Act 2013. It gives an unprecedented insight into the workings and challenges of these procedures, which enable the State to rely on secret material not shown to the other side in court proceedings.
I have acted as a special advocate since 2002, and am one of the 33 special advocates who have subscribed to the submission. Together, we have experience of every case in which the procedures under the 2013 Act have been invoked, across the UK. I believe that the submission is an important contribution to the public understanding of CMPs, which are generally shielded from any scrutiny. The conduct of the Review itself is not only a safeguard which Parliament had imposed in the face of controversy and concerns at the time the proposals that led to the Act were being debated. It is also a prime opportunity for open discussion and debate in relation to these procedures. Sir Duncan Ouseley is a retired High Court Judge with extensive experience of CMPs so is eminently well placed to be undertaking this task.
In January 2020 I posted a piece on this blog, entitled “Secret Justice”: An Oxymoron and the Overdue Review. This sets out the background to these secret procedures, which I will not repeat here. In that piece I raised concern at the continuing failure by the Government to implement the review that Parliament had required to be performed “as soon as reasonably practicable” five years after the relevant procedures under the Justice and Security Act 2013 (JSA) came into force. That 5 year anniversary had come and gone in June 2018, and in January 2020 there was still no sign of the Government complying with the law in section 13 of the JSA. It was to be another year before the review was finally announced in February 2021. On 7 April 2021 the ‘Call for Evidence’ was issued on behalf of the reviewer, just short of three years after the end of the period that was to be reviewed.
In Khan v. Meadows[2021] UKSC 21 the Supreme Court has revisited the principles to be applied in “wrongful birth” claims: claims for the cost of bringing up a disabled child who would not have been born but for a doctor’s negligent medical advice/treatment. However, the judgment has implications beyond the world of clinical negligence litigation. The Supreme Court has taken the opportunity to clarify the components or ingredients of the tort negligence more generally. In particular, the Court has affirmed the importance of the “scope of duty” principle: a principle which limits the recoverability of damages wherever it applies. In particular, it is not sufficient for a claimant to establish that – with competent advice – they would have made a different decision about their treatment or care. They must also demonstrate that the particular harm that they have suffered fell within the scope of the defendant’s duty of care.
On Friday 18 June, the Ministry of Justice published the End-to-End Rape Review Report on Findings and Actions, which assesses how the system is currently failing rape complainants, and sets out a plan to return the volume of cases progressing to court to pre-2016 levels.
In the two years it took to produce the report, the number of rape prosecutions continued to decline rapidly, prompting concerns that rape had been de facto decriminalised. The drop appears to stem from the CPS’s introduction of “levels of ambition” in 2016. Prosecutors were encouraged to aim for 60% of prosecuted cases ending in a conviction; perversely, this may have incentivised dropping weaker or more challenging cases, and resulted in a 60% drop in prosecutions even as the number of police reports increased.
There have been calls for the Lord Chancellor Robert Buckland to resign if he cannot reverse the trend within a year. In the review’s forward, ministers collectively said they were “deeply ashamed.” Elsewhere, Buckland said he was “deeply sorry”.
However, the review has come under fire for an “astonishing” failure to address the effect of funding cuts, reduced resources, release under investigation, court backlogs and delays on the criminal justice system. When asked directly whether he agreed that the system was too under-resourced to be effective, Buckland replied, “I don’t believe we’re close to breaking point, but I do accept that there are pressures on the system which do cause some of the legitimate concerns that I’ve sought to address in the rape review.”
Buckland currently has 21 days to decide whether to request a formal reconsideration of the Parole Board’s decision to approve the release of Colin Pitchfork, jailed in 1988 after raping and strangling 15-year-olds Lynda Mann and Dawn Ashworth in Leicestershire in 1983 and 1986. Shortly after the review’s publication, an analysis of thousands of sexual offence convictions has shown that nearly a third of those convicted avoid prison, including those found guilty of serious sexual offences against children under 13.
During the pandemic, the public’s gratitude to the medical profession has been palpable. But rightly, practitioners continue to be regulated, supervised by the Courts. Here we report a clutch of decisions highlighting some common themes: the importance of transparency and maintaining public confidence in the profession; managing conflicts of interest; making and handling findings of dishonesty.
In R (on the application of Young) v General Medical Council [2021] EWHC 534 (Admin), the Administrative Court upheld the decision of a GMC Assistant Registrar (AR) to proceed with charges against the Claimant notwithstanding a previous Assistant Registrar had taken a contrary view.
The events giving rise to the case were tragic. In October 1996 Claire Roberts, age 9, died at the Royal Belfast Hospital for Sick Children two days after admission. Her death wasn’t referred to the Coroner and the certificate failed to record the diagnosis – hyponatraemia, a condition where sodium in the blood falls dangerously low, leading to cerebral oedema.
In late 2004, a public inquiry was convened following a documentary about the deaths of three other children from hyponatraemia, which prompted Claire’s parents to contact the hospital. The Claimant – Professor of Medicine at Queen’s University, Belfast – was asked to review Claire’s clinical notes and met with Mr and Mrs Roberts in December 2004. A letter to them followed in January 2005 to which he contributed. In May 2006 he gave evidence at the inquest convened to investigate Claire’s death.
The Prime Minister’s recent decision to delay plans to lift coronavirus restrictions by a month has been met with criticism among some legal commentators. The removal of restrictions is now due to take place on 19 July, instead of 21 June. The new deadline was described by the PM as a “terminus date” after which we must “learn to live with Covid”.
In his announcement, the Prime Minister cited the spread of the highly transmissible Delta variant, which now accounts for more than 90% of cases in the UK, and promised to use the extra time to accelerate the vaccination programme. New analysis by Public Health England shows for the first time that two doses are highly effective against hospitalisation from the variant. More than half of UK adults have had their second jab, including 91% of people over 50, and people as young as 18 will be invited to book a jab from the end of the week.
Former Supreme Court Justice Lord Sumption, a prominent critic of the government’s lockdown measures, called the continued lockdown “wicked” and raised the “extreme example” of “Nazi race laws” in arguing that there was no moral obligation to comply with certain laws. In response, barrister Adam Wagner quipped that Lord Sumption’s comments represented “the best case for his own argument that judges should not get involved in politics.”
Elsewhere, however, Wagner acknowledged that the courts have been reluctant to intervene with Covid restrictions, but suggested that at this stage a legal challenge to a refusal to allow a business such as a nightclub to open to double vaccinated customers might be effective. Wagner suggested that “the continued closure of a small number of businesses when the balancing factors have radically changed due to vaccination” might engage Article 1 of protocol 1 of the European Convention on Human Rights, which requires any interference with the ‘peaceful enjoyment of property’ to be proportionate. The delay is predicted to cost UK hospitality £3bn in lost sales and have a “critical impact on struggling businesses.
The announcement was widely anticipated and the public response has been understated. However, it remains to be seen whether the midsummer “terminus date” will truly put lockdowns behind us once we enter the darker, colder months of this pandemic’s second year.
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